Court: Court of Appeals for the Seventh Circuit; December 19, 2006; Federal Appellate Court
The defendant, Robert White, appeals his conviction on multiple counts of mail fraud, wire fraud, and money laundering, stemming from his failure to disclose a conflict of interest while serving on Gary, Indiana's Common Council. The case arose after White's involvement in securing a $30,000 emergency contract for a fence to prevent beach access after a drowning incident. White directed the contract to Raycor, a company owned by his nephew, while only a fraction of the funds reached the actual subcontractor doing the work. The government claimed White defrauded the citizens of Gary by not disclosing his conflict of interest, violating Indiana law which mandates public servants either refrain from profiting from city contracts or disclose such conflicts.
White's defense argued that he did not owe a duty of honest services to the Park District, the entity that awarded the contract, citing its distinct governance structure and independence from the city. White requested a jury instruction that included Indiana's definition of a 'governmental entity' to support this argument. However, the district court's refusal to allow this instruction and other alleged sentencing errors were upheld on appeal, with the court affirming the conviction.
The government objected to a proposed jury instruction regarding an indictment that only referenced the City of Gary, arguing that including broader language from the Indiana Code could confuse the jury. The district court denied the instruction but permitted the defense to argue that White's position as Common Councilman was distinct from the Park District's decision-makers. During closing arguments, White’s counsel attempted to read the statute related to his defense, but the court sustained a government objection, preventing this. White was found guilty on all counts and sentenced to 63 months in prison and ordered to pay $30,000 in restitution. On appeal, White challenged the exclusion of the jury instruction and the reading of the statute, along with various sentencing enhancements, claiming they violated the Sixth Amendment and were erroneous, especially the enhancement for being an elected official.
In analyzing the jury instructions, the court reviews them collectively to assess fairness and adequacy. A defendant is entitled to a jury instruction on their defense theory if it is supported by evidence and its absence denies a fair trial. In this case, the court found that neither condition was satisfied; thus, the failure to include White's instruction was not an error. Under Indiana law, a public servant commits a felony if they have a financial interest in a government contract without a conflict of interest disclosure. While it was established that White was a public servant with a pecuniary interest in the contract, the key dispute was whether the contract was connected to actions by the City of Gary. White argued that the Park District was a separate entity, but the court noted that a contract could be connected to multiple government entities, rendering his argument logically flawed.
The fence contract in question is connected to the Park District, but White's status as a non-public servant of the Park District does not affect its alleged connection to the City of Gary, the sole connection cited in the indictment. The jury instruction proposed by White lacked evidentiary support and did not address the allegations in the indictment. White failed to show how the exclusion of this instruction denied him a fair trial, as he was allowed to argue the independence of the Park District and the Raycor contract from the City of Gary. The government presented evidence linking the Raycor contract to the City, relevant to the charge of defrauding the City of Gary of honest services. The district court's decision to exclude White's proposed jury instruction was not an error, as it did not align with the facts and law of the case, and the overall jury instructions adequately represented the issues.
Additionally, the district court appropriately exercised discretion in preventing White's counsel from reading the entire Indiana statute regarding government entities to the jury. While it is crucial for juries to act as triers of fact, legal interpretation remains the judge's responsibility. Although there are instances where reading law to the jury may be allowed, it is generally not permissible to read irrelevant legal portions previously deemed irrelevant by the court. The court's control over jury arguments is intended to maintain judicial efficiency and clarity, and in this case, the judge's decision did not constitute an abuse of discretion.
The district court appropriately excluded the full Indiana statute from jury instructions to prevent confusion, opting instead to provide necessary legal interpretations relevant to the indictment. White was not denied the chance to assert that the Park District was a government entity or to argue that the contract was unrelated to the City of Gary, although these arguments did not suffice to avoid criminal liability. The court's decision to limit the defense counsel's recitation of the statute during closing arguments was not an abuse of discretion.
In his appeal regarding sentencing, White contends that three enhancements were unconstitutional and one was improper. The court reviews constitutional arguments de novo and non-constitutional sentencing errors for reasonableness. Sentences within the correctly calculated advisory range of the Sentencing Guidelines carry a presumption of reasonableness. White was convicted of crimes with a statutory maximum of thirty years for Count 1 and twenty years for Counts 2-9. With an offense level adjusted to 26, the advisory range was set at 63 to 78 months, resulting in a sentence of 63 months.
White argues that his sentence violates the Sixth Amendment based on the conclusions drawn from enhancements decided by a preponderance of evidence rather than beyond a reasonable doubt. This argument is deemed frivolous, as it overlooks the impact of United States v. Booker, which established that sentencing guidelines are advisory. Since the district court's enhancements did not exceed the statutory maximum, applying them was constitutional, and the court did not err in adjusting White's sentence based on facts not found by a jury.
White contends that the four-level enhancement of his sentence for committing a crime while being an elected public official was erroneous, arguing that he was not an elected official of the Park District. This claim is rejected, mirroring a previously considered 'disconnect' argument. The enhancement applies if the defendant is 'an elected public official' as per U.S.S.G. 2C1.1(b)(3), and White had stipulated that he was an elected official of the City of Gary, where he was found guilty of fraud involving the city's resources. The district court properly calculated the advisory Guidelines range of 63 to 78 months and imposed a sentence within this range, which is presumed reasonable.
The appellant's brief presented issues regarding compliance with Federal Rule of Appellate Procedure 30, which mandates that the appendix include relevant documents from the proceedings, including the judgment and any challenged oral ruling's transcript. White's appendix was inadequate, comprising only five pages of Indiana statutes, lacking the judgment or the necessary transcript, and his counsel incorrectly certified compliance with procedural requirements. The rules are intended to streamline the court's decision-making process, and non-compliance complicates this, potentially leading to dismissals or other penalties as seen in past cases. The court emphasizes the necessity for meticulous adherence to these procedural rules.
Ordering the appellant to resubmit the brief is deemed counterproductive since the necessary documents have already been located to decide the case on its merits. A re-submission would result in wasted time without benefit, and dismissing the appeal or ignoring parts unsupported by the appendix is also considered futile. The court prefers not to reject the appeal based solely on procedural grounds if it lacks merit. The court then contemplates imposing a $1,000 fine on the appellant's attorney for violating Rule 30, consistent with prior cases. Counsel must justify why such a fine would not be appropriate within 21 days. The judgment and sentence of the district court are affirmed. Additionally, the court notes that within the fifteen months since the Supreme Court's Booker decision, it had already rejected the appellant's argument multiple times in earlier cases, underscoring the lack of merit in the appeal.
