In The United States Court Of Appeals For The

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 07-11476-E ___________________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. JACK W. SWANN, et al., Defendants-Appellants. ___________________________________ 07-11644-E ___________________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee vs. BOBBY J. RAST, et al., Defendants-Appellants ___________________________________ On Appeal from the United States District Court for the Northern District of Alabama ___________________________________ REPLY BRIEF OF APPELLANTS FLOYD W. “PAT” DOUGHERTY AND F.W. DOUGHERTY ENGINEERING & ASSOCIATES, INC. ___________________________________ J. Stephen Salter 1330 21st Way South Suite 100 Birmingham AL 35205 (205) 585-1776

Sam Heldman The Gardner Firm 2805 31st St. NW Washington DC 20008 (202) 965-8884

Table of Contents Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Statement Regarding Adoption of Briefs of Other Parties . . . . . . . . . . . .

iii

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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1.

A charge under 18 U.S.C. § 666 requires proof of intent to influence or reward some specific act, business, transaction or series of transactions, rather than merely proof of something more vague and generalized; with that as the governing legal standard, there must be a judgment of acquittal or at least a new trial. . . . . . . . . . . . . . .

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The Government did not prove, in either case, that Dougherty and FWDE conspired to violate 18 U.S.C. § 666 as charged. . . . . . . . .

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Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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2.

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Table of Authorities Sabri v. U.S., 541 U.S. 600, 124 S.Ct. 1941 (2000) . . . . . . . . . . . . . . .

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U.S. v. Hines, 541 F.3d 833 (8th Cir. 2008) . . . . . . . . . . . . . . . . . .

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U.S. v. Parker, 839 F.2d 1473 (11th Cir. 1988) . . . . . . . . . . . . . . . . .

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18 U.S.C. § 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 U.S.C. § 666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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passim

Statement Regarding Adoption of Other Parties’ Briefs As we did regarding the opening briefs, Dougherty and FWDE adopt all portions of the reply briefs of the other appellants, except for any portion that is plainly inapplicable to these appellants (such as arguments pertaining to counts of the indictment that did not involve these appellants). It is not possible to be more precise than this, since other appellants’ reply briefs have not yet been filed or finalized at the time this brief is being filed. In particular, but without limitation, these appellants continue to adopt all arguments pertaining to the charges under 18 U.S.C. § 666 and the conspiracy charges that involved these appellants, as well as arguments about the erroneous introduction of evidence under Fed. R. Evid. 404(b) and 403.

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Argument Having adopted the arguments of other appellants (see Dougherty Opening Brief p. v; see also this brief supra, p. iii), appellants Floyd “Pat” Dougherty (Dougherty) and F. W. Dougherty Engineering & Associates, Inc. (FWDE) will confine this reply brief to a few specific points. 1.

A charge under 18 U.S.C. § 666 requires proof of intent to influence or reward some specific act or acts, rather than merely proof of something more vague and generalized. We showed in our opening brief that the best interpretation of 18 U.S.C. §§

666(a)(1)(B) and (a)(2) is that the Government must prove, beyond a reasonable doubt, the intent to influence or reward some identifiable act or acts. (Dougherty Opening Brief pp. 22-29). A mere intent to generate influence that might be useful someday is not enough. In response, the Government does not claim that the conviction can be upheld if we are right about this issue of law. The Government does not claim that the evidence was sufficient to prove guilt beyond a reasonable doubt, if we are right about this issue of law. The Government also does not claim that the jury instructions were adequate, if we are right about this issue of law. The Government does not even claim, for instance, that it proved an intent to influence or reward a set of acts that would be defined to include all contracting decisions pertaining to the Jefferson County sewer system. We anticipated that the 1

Government might so argue (Dougherty opening brief p. 25), and we showed that such an argument would be wrong. The Government implicitly concedes the point, by not making the argument that we anticipated. Again, the Government does not contend that it proved that Dougherty or FWDE had the intent to influence or reward either a particular act or an identifiable set of acts. Instead the Government’s position is that the law does not require it to prove such a thing. (E.g., Gov’t Brief p. 48 (arguing that § 666 is satisfied by proof of “[s]chemes … which put public officials on retainer so they act favorably when opportunities arise”); p. 62 (arguing that § 666 does “not require ‘proof of the intent to influence or reward something identifiable and particularized.’”); id. pp. 62-63 (arguing that the statute covers payments made merely in order to generate influence that might be useful on some unknown future occasion)). In our opening brief we pointed out one strong textual reason why the Court should interpret the statute as we do, and should reject the Government’s position. (Dougherty Opening Brief, p. 24). That textual reason is based on the portion of subsections a(1)(B) and (a)(2) underlined below: (B) 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; or (2) corruptly gives, offers, or agrees to give anything of value to any 2

person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; As a matter of grammar, that adjectival phrase, “involving anything of value of $5,000 or more,” modifies the nouns “business, transaction, or series of transactions.” It plainly requires proof beyond a reasonable doubt that the “business, transaction or series of transactions,” in connection with which the defendant intended to influence or reward, involved something of value equal to or greater than $5,000. As we said in our opening brief, That monetary floor, by its very nature, has to have reference to some identifiable thing – such as a specific governmental contract – or else is poses a question that can never be answered. If (as the Government and District Court would have it) there can be a violation of § 666 arising from a payment that is intended to secure influence not over a specific governmental decision but instead just to have influence in reserve, just in case it might be useful to have influence at some unknown future point – then how could one prove that the at-least$5000 element was met? (Dougherty Opening Brief, p. 24). The Government’s only response to this argument is extremely brief and weak. The entire substantive content of the Government’s response to this strong textual argument is one sentence and one citation in a footnote: That statutory minimum requires no particular precision and can be met by aggregating value over time. See United States v. Hines, 541 F.3d 833, 837 (8th Cir. 2008). 3

(Gov’t Brief p. 54 n. 29). But this is no response whatsoever to the strong textual point that we were making. It may well be true, as the Government says, that the statutory minimum does not require precision in the valuation; but still there must be something that is the subject of the valuation. The valuation can be a best estimate, perhaps, but still it has to be the valuation of some thing or set of things. Hines does not say otherwise. It may well be true that the value can be aggregated over time, where the proven intent was to influence or reward multiple acts (Hines itself being that sort of case); but still there must be an identification of what those intended-to-be-influenced-or-rewarded acts were, before the process of valuation can even get started. It is impossible to place a value on something, or group of things, that is not identified. Hines does not say otherwise. Thus the Government has offered no logical and relevant argument, of a sort that would actually have any force against the textual argument that we advanced. The statute requires proof of the value of the thing(s) that were intended to be influenced or rewarded. Given that, the statute cannot possibly cover the intent to generate influence just in case it might be useful in some as yet unknown, or unidentified, future contingency. The Government cannot answer this point.1

Again the Government does not seek to meet this argument by pointing to a contract or series of contracts that added up to more than $5,000, and contending that it proved beyond a reasonable doubt that Dougherty and FWDE intended to influence or reward in connection with all of them in aggregate. The Government is insistent instead that it does not have to bear that burden, that it can keep things 1

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The Government finds this argument so inconvenient, and so impossible to answer, that the Government often resorts to omitting the inconvenient part of the statute. Even when the Government claims that the plain language of the statute supports its view, the Government carefully paraphrases the language of the statute by omitting the $5,000 floor. (Gov’t Brief p. 64 (“Thus, under Section 666 the courts have concluded that the intent – or quid pro quo – element is exactly what the express language of the statute says: a corrupt intent to influence or reward a government employee in connection with any business or transaction of the government agency.”); p. 67 (again arguing that the Government had only to prove “a corrupt intent to be influenced or rewarded, in connection with any business of that agency,” again omitting the $5,000 clause of the statute); p. 48 (similar argument, made by quoting the statute in part but stopping abruptly so as to omit the $5,000 clause)). A “plain language” argument that depends on omitting part of the “plain language” of the statute, we submit, is not much of a “plain language” argument at all. But that is the position that the Government is in; it is asking the Court to join it in ignoring part of the statute. This Court should not do that. Even if it means disagreeing with some other court that has rejected our position, this Court should not adopt an interpretation that depends on ignoring part of the text of the statute. looser and more vague than that, and that it can obtain a conviction without pointing to what was supposedly to be influenced or rewarded. 5

In addition to the textual argument based on the valuation clause, we also made another strong argument to which the Government has no answer. This is the argument that uses core principles of federalism, or principles about the relationship of the federal and state governments, as a clue to interpretation. (Dougherty Opening Brief, pp. 26-28). We pointed out that a similar statute applicable to federal government officials, 18 U.S.C. § 201, requires proof of an connection between the thing of value given to the official, and an identifiable act by the official. Yet the Government asks this Court to hold that in § 666 the Congress has imposed a stricter rule on state and local officials whose agencies receive federal funds, than the Congress has imposed on federal officials. Such a legislative choice would be so odd, so fundamentally in conflict with the basic framework of our national government, that the Court should reject it. If the statute’s words clearly demanded such an odd rule, a rule under which state and local officials can be put in federal prison for things that federal officials do with impunity, then that would be a different matter. But since the statute’s words do not clearly demand such an odd rule, this Court should not create it; this Court should instead interpret § 666 to be in harmony with § 201. Responding to all defendants’ arguments about § 201, the Government discusses the origin and drafting of § 666 as an effort to extend federal anticorruption norms to state and local officials whose agencies receive federal funds. 6

(Government Brief, pp. 57-60). True enough, but this argument is completely unresponsive to the point that we made in our opening brief. If the Congress wants to impose stricter standards on local and state officials than on federal ones, the Congress should say so unmistakably. The Government quotes (Gov’t Brief p. 61) a brief passage from Sabri v. U.S., 541 U.S. 600, 124 S.Ct. 1941 (2000), that used the phrase “general retainers” in a discussion of § 666. But Sabri was not about the question involved in this case, and does not answer the question presented here. Sabri was about a completely different question: whether there had to be a “nexus” between the federal funds that are the jurisdictional predicate for the statute, and the bribe. A stray sentence from Sabri cannot even be taken as dictum about, much less as a pronouncement on, the entirely different question presented here. An attention to the limits of criminal statutes as written, rather than a loose interpretation of them in order to punish all who seem to have done something improper, is the hallmark of our legal system. The question is not whether the Government proved intentions, or actions, that are ethically improper in the eyes of the Court or the prosecutors or the public. The question is whether the Government proved that these defendants violated the particular law that Congress wrote. That is where the Government failed. For these reasons, as well as those reasons explained in the other briefs before the Court, the Court should render a 7

judgment of acquittal for Dougherty and FWDE, or should at least reverse the convictions and remand for a new trial with proper jury instructions. 2.

The Government did not prove that Dougherty and FWDE conspired to violate 18 U.S.C. § 666 as charged. We also showed (Dougherty Opening Brief pp. 17-22) that, even beyond this

legal issue about the required elements of proof under § 666, the Government certainly failed to prove that Dougherty and FWDE conspired to violate that statute as charged in Counts 1 and 51. We showed that there was no proof, and nothing more than speculation, that the various defendants had a mutually known and shared intent to violate § 666. True enough, the private-sector defendants worked together on construction jobs, at the Swann house and the McNair studio. But did Dougherty and FWDE know what intent the others harbored as to why they were doing that work, did they know that the others had the intent that § 666 proscribes, and did Dougherty and FWDE agree with the others that they would work together to pursue such intent? This is where the proof was entirely absent. In response, the Government claims to have met its burden of proof on the conspiracy charges. (Gov’t Brief pp. 101-08). But the Government’s claim is based first on an avoidance of the core issue – and then, beyond that, on conjecture rather than evidence or reasonable inference. The Government’s avoidance of the core issue is its pretense that there are 8

only two possibilities: (a) that the defendants all agreed to engage in construction projects that were, from the perspective of each of them, entirely innocent; or (b) that they were all acting in a conspiracy to violate § 666. The Government argues that the evidence would allow the rejection of (a) and therefore that it would allow the acceptance of (b). But the Government thereby tries to set itself an easier task than the law demands, by omitting the third possibility: (c) that even if some or even all of the defendants had the intent that § 666 proscribes, still the Government failed to prove that they mutually agreed to pursue that intent together. “Entirely innocent” and “guilty of conspiracy” are not the only possibilities. In other words, even if some or all the defendants were guilty of the substantive § 666 charges, that does not mean that they or their co-defendants were also guilty of conspiring with each other to violate § 666. To go beyond conviction on the substantive counts, and to get a valid conviction on the conspiracy counts as well, the Government had to prove the added point of a shared intent – “shared” not just in the sense that each of the defendants harbored the intent secretly within himself, but actually “shared” in the sense that they each knew that the others harbored that intent, and that they agreed to work together towards that unlawful end. If this Court does not insist on that extra element of proof, then the difference between substantive crime and conspiracy will have collapsed. “Conspiracy” would then be nothing more than a prosecutorial tool to 9

gain a trial advantage, rather than being a separate criminal offense. This Court should scrupulously insist on proof of conspiracy, where that crime is charged, beyond the evidence that would suffice for proof of the underlying substantive crime.2 And as we showed in our opening brief, there is no proof beyond a reasonable doubt that Dougherty or FWDE agreed with others on the goal of doing what § 666 prohibits. There is no evidence that they knew that others had that goal, and no evidence that others knew that Dougherty or FWDE had it. The evidence shows only that the various defendants worked together on construction projects, with each one’s intent being (as far as the evidence shows) a thing that the others neither knew or cared about. As to the work on Swann’s house, the Government gives its sufficiency of the evidence argument on the conspiracy charge at pp. 106-07 of its brief. But the Government cites no evidence at all that Dougherty or FWDE knew anything about why the other defendants were doing the work. The Government also cites

2

As we have discussed above and in our opening brief, the Government did not prove that Dougherty and FWDE harbored the particular intent that § 666 proscribes. If the Court agrees, then their convictions on the conspiracy count will easily fall as well; the Government makes no argument that the conspiracy convictions can survive if the § 666 convictions fall. That is why this argument about conspiracy is primarily focused on an argument that would knock out the conspiracy charges even if the § 666 convictions were affirmed. So, obviously, nothing we say herein should be taken as an admission that Dougherty or FWDE harbored, in themselves, the intent that § 666 prohibits. 10

no evidence that Dougherty or FWDE knew of any attempts by any other defendants to hide work or expenses on the Swann project; and the Government cites no evidence that Dougherty or FWDE knew of what financial arrangements the other construction defendants had with Swann. Literally all that is shown by the Government’s description, in terms of an alleged conspiracy by these defendants at the Swann site, is that construction was going on, with no evidence whatsoever of any shared criminal intent. This is not enough to support the conviction on Count 51, the conspiracy charge in the Swann trial. That conviction should therefore be vacated, at the very least. As to the work on McNair’s studio in the Rast trial, the Government relies very heavily (Gov’t Brief, pp. 102-05) on evidence that some materials used in construction of the studio were charged to Jefferson County sewer projects. But this will not substitute for proof of a conspiracy to violate § 666. First of all, the Government does not even claim that Dougherty – the individual – knew of any such conduct by other companies. So this is no evidence of a conspiracy by him, and his conviction on this count must surely fall since he is not part of the evidence on which the Government relies. Indeed, in the Government’s argument about the sufficiency of the evidence on the McNair conspiracy charge (Gov’t Brief, pp. 102-05), there is no mention of Dougherty the

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individual.3 He is therefore undoubtedly entitled to a judgment of acquittal on Count 1. Second, even as to FWDE – the corporation – the Government still has not met its burden of proving a conspiracy to violate § 666 in the McNair construction. If some materials used in building McNair’s studio were charged to the County, that still does not convert into an intent to influence or reward McNair; the inference simply does not follow at all. The Government tries to analogize this to an attempt by defendants to “hide” what they were doing, on the theory that efforts to hide one’s behavior can constitute evidence of a conspiracy. But the analogy does not work. The construction work at McNair’s studio was not “hidden” in the least; the defendants were doing it openly in public. Billing the materials to one place versus another did not “hide” anything, in any sense that is meaningful to proof of a conspiracy. Intending to influence or reward McNair was the conspiracy that the Government charged, and that it had to prove. Other wrongs, civil or potentially even criminal, are not the same as that charged object of the conspiracy. Here again, the Government is trying to avoid its burden of proving a

3

In the Government’s sufficiency argument as to the alleged Swann conspiracy, the only mention of Dougherty the individual is the assertion (Gov’t Brief p. 106) that he sent FWDE employees to work on the Swann house and then visited the site. There is no suggestion of any other proof that Dougherty the individual conspired with anyone else. This is surely not enough for a conviction on this conspiracy charge; it is no evidence that Dougherty had an agreement with the other defendants to violate § 666. 12

conspiracy to violate § 666(a)(1)(B) and (2), by focusing instead on a more general effort to prove impropriety in a generalized sense. This Court should not allow that effort. This Court has, in the past, reversed conspiracy convictions where the Government has failed to prove the existence of an agreement among the defendants to commit a crime together. See, e.g., U.S. v. Parker, 839 F.2d 1473 (11th Cir. 1988).4 This Court should reach that same conclusion in this case, and should overturn the conspiracy convictions for lack of proof beyond a reasonable doubt. Conclusion The Court should reverse or vacate the convictions, and should render a judgment of acquittal, or at least order a new trial.

4

Parker, 839 F.2d at 1478: “The appellants certainly directed their efforts toward the common goal of making money for themselves and their employer. But to support a conspiracy conviction, the evidence must establish a common agreement to violate the law. … While the evidence clearly shows that the law was violated, there is insufficient evidence of a common agreement. Without evidence showing or tending to show a meeting of the minds to commit an unlawful act, the convictions cannot stand.” 13

Respectfully submitted,

____________________________ J. Stephen Salter 1330 21st Way South Suite 100 Birmingham AL 35205 (205) 585-1776

Sam Heldman The Gardner Firm 2805 31st St. NW Washington DC 20008 (202) 965-8884

Certificate of Compliance The foregoing was prepared in Times New Roman, 14 point, and contains 3,447 words according to the word-processing application that was used to prepare it.

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Certificate of Service I certify that copies of the foregoing have been served by U.S. Mail on the following this ____ day of ______________, 2009, that on the same day the brief has been uploaded electronically to the Court, and that an original and six copies have been sent by U.S. Mail to the Clerk for filing. Michael L. Brown Alston & Bird, LLP 1201 West Peachtree St. Atlanta GA 30309-3424

William N. Clark Keith E. Brashier Gerald L. Miller Redden, Mills & Clark 505 20th St. North, Ste. 940 Birmingham AL 35203-4658

David H. Flint Schreeder, Wheeler & Flint LLP 1100 Peachtree St. NE, Ste. 800 Atlanta GA 30309-4516

John J. Powers III John P. Fonte James J. Fredericks Kirsten C. Limarzi U.S. Department of Justice 950 Pennsylvania Ave. NW Washington DC 20530

Terry W. Gloor Gloor & Strickland LLP 100 Williamsburg Office Park Suite 100 Birmingham AL 35216-3686

G. Douglas Jones Anil A Mujumdar Haskell Slaughter Young & Rediker, LLC 1400 Park Place Tower 2001 Park Place North Birmingham AL 35203

Janice Singer 3141 Maple Drive. NE Atlanta GA 30305-25023

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