United States v. Quinn ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4753
CLIFFORD J. QUINN,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4762
JAN P. BLANTON,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-00-275-AW)
Argued: December 3, 2003
Decided: March 4, 2004
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Shedd wrote the opinion in which Judge Michael and Judge
Traxler joined.
2 UNITED STATES v. QUINN
COUNSEL
ARGUED: Robert Charles Bonsib, MARCUS & BONSIB, Green-
belt, Maryland, for Appellant Quinn; Michael Joseph, BLANK
ROME, L.L.P., Washington, D.C., for Appellant Blanton. Bonnie S.
Greenberg, Assistant United States Attorney, Greenbelt, Maryland,
for Appellee. ON BRIEF: Alex Blanton, BLANK ROME, L.L.P.,
Washington, D.C., for Appellant Blanton. Thomas M. DiBiagio,
United States Attorney, Sandra Wilkinson, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
OPINION
SHEDD, Circuit Judge:
A grand jury indicted Clifford Quinn, Jan Blanton, and Christopher
Beisler on two counts of soliciting a bribe, three counts of conflict of
interest, two counts of "honest services" wire fraud, and one count of
conspiracy to defraud the government. Beisler pled guilty and agreed
to testify against Quinn and Blanton. After a three-week trial, the jury
found Quinn guilty on all counts and Blanton guilty on all counts but
one. The district court sentenced Quinn and Blanton each to 87
months’ imprisonment and a $15,000 fine. Quinn and Blanton timely
appealed, challenging their convictions on the two bribery counts and
their sentences. For the reasons that follow, we affirm the convictions
but vacate the sentences and remand the case for resentencing.
I.
From 1994 to 1998, Blanton served as Director of the Executive
Office for Asset Forfeiture ("EOAF"), the agency within the Depart-
ment of the Treasury responsible for administration of the Treasury
Forfeiture Fund.1 Various law enforcement agencies within the Trea-
1
Because Quinn and Blanton appeal from judgments of conviction, we
view the facts in the light most favorable to the government. See United
States v. Glasser, 315 U.S. 60, 80 (1942); United States v. Burgos, 94
F.3d 849, 862-63 (4th Cir. 1996).
UNITED STATES v. QUINN 3
sury Department deposit non-tax forfeited assets into this fund.
Among other things, the monies deposited in the Treasury Forfeiture
Fund may be used to finance internal EOAF projects. In the spring of
1997, Blanton hired her paramour, Quinn, to oversee the operation of
EOAF’s asset forfeiture tracking systems. Shortly after assuming his
duties at EOAF, Quinn requested and Blanton approved a no-bid con-
tract for Quinn’s friend Beisler to repair a computer system that had
been installed only a month earlier. Quinn set the price of this con-
tract at $50,000; Beisler completed the work in two nights.
At about the same time, Quinn began discussing with Beisler a
business venture, later known as Equus, to develop asset tracking
software for use by federal, state, and local law enforcement agencies.
State and local law enforcement agencies may make claims against
the Treasury Forfeiture Fund for shares of certain forfeited assets held
in the fund, and Quinn asked Beisler to write software for Equus that
would allow state and local officials to manage their asset tracking
information requests to the federal government. Quinn suggested that
the new business be funded by monies that Beisler would receive
from EOAF contracts. While Quinn and Beisler maintained this pro-
spective business arrangement, Quinn and Blanton approved two
more no-bid contracts for Beisler, one for $50,000 and another for
$24,500.
Shortly after Beisler began his work at EOAF, Quinn began dis-
cussing his goal of fully automating the office. Quinn’s experience in
government offices convinced him that the existing programs were
wasteful and inadequate. At the same time, Quinn saw an opportunity
to profit from his Equus applications. According to Beisler, Quinn
estimated that they could make between $30 million and $60 million
from Equus once the EOAF office was fully automated. Quinn could
"wire up these contracts" so Beisler would do the work; Quinn would
then quit his government job and go to work for Beisler.
In July and August 1997, Quinn and Blanton approached Counter
Technology, Inc. ("CTI") to discuss a contract for the full automation
of the EOAF system. At a July 24 meeting, Quinn presented a busi-
ness plan for a joint venture between CTI and Equus. This presenta-
tion included slides describing potential applications of Equus
software to EOAF functions and prices for Equus products. The pric-
4 UNITED STATES v. QUINN
ing schedule made reference to fully automated versions of Equus
products designed to interact with "mirror capabilit[ies]" at EOAF and
other government agencies. Quinn’s presentation also covered the
estimated costs of the EOAF automation project. A week after this
initial meeting, Quinn faxed CTI a letter proposing a "joint venture
between Equus and CTI" to market the new software. Equus would
produce the software and provide technical expertise, while CTI
would handle marketing. Quinn stated that EOAF intended to award
a contract for development of an automated system in October 1997;
he further proposed that he "manage this effort from the private sec-
tor."
Quinn and Blanton subsequently had dinner at the home of CTI’s
principals. At this meeting, Quinn again promoted his Equus software
and Blanton indicated that she wanted to award a no-bid contract to
CTI for the automation of the EOAF system. Blanton told CTI that
this contract would be worth more than $4 million and that she would
structure the deal in a manner that would satisfy applicable contract-
ing rules.
A few days after this dinner meeting, Quinn faxed CTI another
document indicating specific terms for the proposed joint venture.
Quinn proposed that he "come to work as an employee of CTI with
a base salary of $125,000; management of any federal procurement
utilizing the design of any of the Equus packages; . . . 40% of the net
revenues of any procurement utilizing the Equus applications; person-
nel authority over any application managed; [and] management of any
application as a profit center with performance bonuses tied to profit-
ability." In a subsequent telephone conversation with one of CTI’s
principals, Blanton stated that she wanted Quinn to be the project
manager for the automation project once CTI was awarded the con-
tract. Blanton told one CTI official that CTI needed to hire Quinn so
she could "sustain her lifestyle."
Hoping to avoid a conflict with Blanton, CTI made no response
concerning the automation contract. CTI soon learned that Blanton
was removing CTI employees from work details at EOAF and com-
plaining to other government officials about CTI’s work. When
another government official asked CTI what was causing these new
complaints, a CTI representative suggested that Blanton was upset
UNITED STATES v. QUINN 5
because CTI was dragging its feet on the automation contract pro-
posal. Blanton did not award the automation contract to CTI.
Blanton continued her search for a contractor to automate the
EOAF office. In September 1997, she approved a procurement
request for the automation project, then valued at $10 million. Quinn
and Blanton specifically requested that Beisler perform the automa-
tion work. In response to this request, Treasury Department procure-
ment officers advised Quinn and Blanton that once a contractor was
selected, they could only suggest that Beisler be hired as a subcon-
tractor on the project; it would be left to the discretion of the contrac-
tor to determine whether Beisler would be involved. With Blanton’s
approval, West Electronics ("West") was selected to be the prime con-
tractor. Quinn and Blanton continued to press for Beisler’s participa-
tion in the project, urging procurement officers to make certain that
Beisler was made the project manager on West’s project.
West entertained a bid from Beisler for a subcontract. Beisler ini-
tially submitted a bid proposing that he receive about 80% of the $10
million contract. West rejected this bid, noting that applicable con-
tracting rules capped any subcontractor’s share at 49% of the contract
price. Beisler complained to Quinn that West was not likely to pay
him more than about $2 million for his work on the project. Quinn
responded, "I’m not doing this contract for no $2 million." Beisler
revised his bid to reflect the 49% cap, but West still refused to do
business with him. West went to the Treasury Department procure-
ment officers handling the project to find out whether West had any
obligation to use Beisler. Shortly after West indicated that it was not
likely to engage Beisler, Blanton announced that she no longer
wanted West to handle the project. One of the procurement officers
in charge of the project attempted to persuade Blanton that West was
capable of performing the contract, but Blanton was unmoved. The
offer to West was withdrawn.
II.
Quinn and Blanton were convicted on two counts of soliciting a
bribe, in violation of 18 U.S.C. § 201(b)(2), which states that
"[w]hoever . . . being a public official or person selected to be a pub-
lic official, directly or indirectly, corruptly demands, seeks, receives,
6 UNITED STATES v. QUINN
accepts or agrees to receive or accept anything of value personally or
for any other person or entity, in return for: (A) being influenced in
the performance of any official act; (B) being influenced to commit
or aid in committing, or to collude in, or allow, any fraud, or make
opportunity for the commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of the offi-
cial duty of such official or person" shall be fined or imprisoned, or
both, and disqualified from holding federal office.
Quinn and Blanton seek to set aside their bribery convictions on
the grounds that (1) the indictment failed to allege with sufficient par-
ticularity the facts underlying the bribery counts, (2) the district court
improperly instructed the jury on the elements necessary for convic-
tion on the bribery counts, (3) the evidence was not sufficient to sup-
port convictions on the bribery counts, and (4) the district court
improperly permitted the government to elicit testimony concerning
Quinn’s refusal to answer certain questions during an internal Trea-
sury Department investigation.
A.
Quinn and Blanton first contend that the indictment failed to allege
with sufficient particularity that they intended to effect an exchange
of a specific payment for specific official action. Because Quinn and
Blanton did not object to the sufficiency of the indictment in the dis-
trict court,2 we review this claim for plain error. See United States v.
Cotton, 535 U.S. 625, 631 (2002) (applying plain error analysis to a
claim that the indictment failed to allege an element of the charged
offense). Under this standard of review, reversal is not warranted
unless we find a plain error that affects substantial rights and seri-
ously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
2
Quinn and Blanton moved the district court for a bill of particulars,
seeking more specific information concerning the bribery counts.
Because a bill of particulars cannot cure a deficient indictment, United
States v. Hooker, 841 F.2d 1225, 1227 (4th Cir. 1988) (en banc), we con-
clude that seeking this remedy — without objecting to the sufficiency of
the indictment — does not preserve for review an alleged defect in the
indictment.
UNITED STATES v. QUINN 7
"[A]n indictment is sufficient if it, first, contains the elements of
the offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, enables him to plead an
acquittal or conviction in bar of future prosecutions for the same
offense." Hamling v. United States, 418 U.S. 87, 117 (1974). Accord
United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002). While
it is generally sufficient that the indictment describes the offense by
using the unambiguous language of the statute, that general descrip-
tion "must be accompanied with such a statement of the facts and cir-
cumstances as will inform the accused of the specific offense, coming
under the general description, with which he is charged." Hamling,
418 U.S. at 117-18. See also Russell v. United States, 369 U.S. 749,
765 (1962) (noting that an indictment must "descend to the particu-
lars" where the definition of an offense includes generic terms).
"Thus, the indictment must also contain a ‘statement of the essential
facts constituting the offense charged.’" Brandon, 298 F.3d at 310
(quoting Fed. R. Crim. P. 7(c)(1)).
Our consideration of these standards is tempered by the absence of
an objection to the indictment before the verdict was rendered.
Rejecting a challenge to the sufficiency of an indictment, we stated
in United States v. Vogt, 901 F.2d 1184 (4th Cir. 1990), that "[w]hen
a post-verdict challenge to the sufficiency of an indictment is made,
every intendment is then indulged in support of . . . sufficiency." Id.
at 1201 (internal quotations omitted). As to the factual allegations, we
ask whether "the necessary facts appear in any form, or by a fair con-
struction can be found" within the indictment. Id. (internal quotations
omitted). As to the elements of the offense, "the indictment will be
held sufficient if it contains words of similar import." Id. (internal
quotations omitted).
Section 201(b) makes it illegal for a government official corruptly
to solicit "anything of value personally or for another person or entity,
in return for" being influenced in the performance (or non-
performance) of some official act. 18 U.S.C. § 201(b)(2)(A). "[F]or
bribery there must be a quid pro quo — a specific intent to give or
receive something of value in exchange for an official act." United
States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999).
We have stated that the government is not required in a bribery case
to prove "an expressed intention (or agreement) to engage in a quid
8 UNITED STATES v. QUINN
pro quo." United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir.
1998). Nor must the government prove "that the defendant intended
for his payments to be tied to specific official acts (or omissions).
. . . Rather, it is sufficient to show that the payor intended for each
payment to induce the official to adopt a specific course of action."
Id. In other words, "[t]he quid pro quo requirement is satisfied so long
as the evidence shows a course of conduct of favors and gifts flowing
to a public official in exchange for a pattern of official actions favor-
able to the donor." Id. (internal quotations omitted). Although the
defendant in Jennings was the payor rather than the government offi-
cial, these standards apply with equal force in the solicitation context.
Thus, an indictment charging solicitation of bribery in violation of
§ 201(b) should allege that (1) the defendant was a government offi-
cial, (2) who sought something of value from another person, (3) in
exchange for favorable official action or inaction by the defendant.
After reciting the language of § 201(b), Count Four of the indict-
ment charged that Quinn and Blanton "sought from CTI benefits for
Equus, Clifford J. Quinn and Christopher F. Beisler in return for
favorable consideration and recommendation on specified future con-
tracts with the Treasury Department." Count Four also incorporated
paragraph 23 of the indictment, which alleged that Quinn and Blanton
"would solicit employment and other financial benefits from third
parties in exchange for offering to award future potential government
contracts." Count Seven likewise recited the language of the statute
and then charged that Quinn and Blanton "sought from West Elec-
tronics benefits for Christopher F. Beisler in return for favorable con-
sideration and recommendation on a contract with the Treasury
Department." Count Seven also incorporated paragraph 24 of the
indictment, which alleged that Quinn and Blanton "would attempt to
funnel money through West Electronics to [Beisler] by offering to
award a government automation contract on the condition that the
third party pay Beisler to perform much of the contract work."
These allegations, taken together, identify the relevant parties and
the purported quid pro quos.3 Count Four put Quinn and Blanton on
3
Blanton contends that Count Seven is defective because it fails to
allege any misconduct by her specifically. This argument is meritless.
Not only is Blanton named in Count Seven, but she is also specifically
named in paragraphs 24 and 25 of the indictment, which were incorpo-
rated into Count Seven by reference. Thus, Count Seven charged an
offense against Blanton as well as Quinn.
UNITED STATES v. QUINN 9
notice that they were charged with seeking from CTI direct compen-
sation to Quinn (in the form of employment) in exchange for favor-
able consideration on a government contract. Count Seven put Quinn
and Blanton on notice that they were charged with seeking from West
a lucrative subcontract for Beisler in exchange for favorable consider-
ation on a government contract. These allegations are sufficiently spe-
cific to bar a future prosecution for the same offenses. We conclude
that Counts Four and Seven of the indictment adequately alleged vio-
lations of § 201(b), and it was not plain error to enter judgments of
conviction against both Quinn and Blanton on these counts.
B.
Quinn and Blanton next contend that the district court’s instruction
on the bribery counts was inadequate because it (1) failed to require
the jury to find that they sought a specific payment in return for a spe-
cific official act, and (2) allowed the jury to convict them even if they
acted as they would have absent a bribe. The district court instructed
the jury as follows:
And the final element to the bribery section, Counts 4 and
7, the third element that the government must prove beyond
a reasonable doubt is that the defendant demanded, sought
or received a thing of value with the corrupt intent of being
influenced in the performance of an official act.
Corrupt intent means simply having an improper motive
or purpose. The defendant must have demanded, sought or
received a thing of value with the deliberate purpose of
being influenced in the performance of his or her official
duties. This involves conscious wrongdoing or, as it is
sometimes expressed, a bad or evil state of mind. An official
act means any decision or action on any question or matter
which may at any time be pending or which may by law be
brought before any public official in his or her official
capacity or in his or her place of trust.
The official act as to Count 4 in this case was relating to
CTI in return for favorable consideration and recommenda-
tion on specified future contracts with the Treasury Depart-
10 UNITED STATES v. QUINN
ment. And for Count 7 this related to West Electronics in
return for favorable consideration and recommendation on
a contract with the Treasury Department.
As an initial matter, the record shows — and Quinn and Blanton
do not dispute — that the district court’s instruction on this issue was
precisely the instruction that they requested.4 Thus, to the extent that
Quinn and Blanton challenge the affirmative statement of the ele-
ments of the offense, any error committed by the district court in giv-
ing this instruction was invited error and is not subject to review. See
United States v. Herrera, 23 F.3d 74, 75-76 (4th Cir. 1994).5
Invited-error analysis does not apply, however, to the claim that the
district court improperly instructed the jury that it could convict
Quinn and Blanton even if their conduct was not actually altered by
the purported bribe. The district court instructed the jury as follows:
It is not a defense that the official act sought to be influ-
enced would have been done anyway regardless of the fact
4
Quinn and Blanton did request that a single sentence be added to the
end of the instruction, but that request concerned an issue wholly unre-
lated to the defendants’ complaint on appeal. The defendants requested
the instruction that was given and never suggested that the instruction be
altered to reflect the interpretation of the quid pro quo requirement that
they now advance.
5
In any event, we note that the defendants’ argument on this point is
substantially the same as their argument on the sufficiency of the indict-
ment: Conviction under § 201(b) requires proof of specific payments
influencing specific official actions. Jennings does not require the partic-
ularity that the defendants urge, with respect to either the indictment or
the proofs. Conviction under § 201(b) requires a finding that the defen-
dant sought something of value in exchange for performance (or non-
performance) of some official action. Jennings, 160 F.3d at 1014. Thus,
we held in Jennings that a jury instruction failed to describe the quid pro
quo requirement where there was no mention of payment made in
exchange for official action. 160 F.3d at 1018-21. Because the district
court in this case instructed the jury that it must find that Quinn and
Blanton offered official action "in return for" financial benefits, we
would reject the defendants’ challenge to this aspect of the jury instruc-
tions even if it were properly presented to us.
UNITED STATES v. QUINN 11
that the bribe was received or accepted. That is to say, even
if the defendant acted as he or she normally would if the
bribe had not been requested, the crime of bribery has still
been committed.
The defendants did not request this instruction, and they did object to
it. Accordingly, we review this instruction for abuse of discretion. See
United States v. Bolden, 325 F.3d 471, 486 (4th Cir. 2003). The dis-
trict court’s instructions on this issue will be upheld "provided that the
instructions, taken as a whole, adequately state the controlling law."
Id.
We conclude that the instruction was properly given. Quinn and
Blanton argued that they were merely carrying out their ordinary
responsibilities at EOAF and that the automation project was neces-
sary with or without CTI or West. The district court properly gave an
instruction responsive to this argument, and the instruction accurately
stated controlling law. It is not necessary for conviction under
§ 201(b) that the official act offered in exchange for the bribe be
harmful to the government or inconsistent with the official’s legal
obligations. United States v. Miller, 340 F.2d 421, 424 (4th Cir.
1965). The critical question is whether the government official solic-
ited something of value with a corrupt intent, i.e., in exchange for an
official act. Jennings, 160 F.3d at 1014. By the same reasoning, it
does not matter whether the government official would have to
change his or her conduct to satisfy the payor’s expectations.6
6
The defendants’ reliance upon Woelfel v. United States, 237 F.2d 484
(4th Cir. 1956), is unavailing. We reversed the conviction in that case —
a gratuity case — because the defendant was entitled to an instruction
that there could be no conviction if he made the solicitation after he had
"exhausted his power of decision or action on the matter before him" and
was not expecting that any gratuity would be forthcoming. Id. at 488.
Indeed, it cannot be said that an official solicits a bribe in exchange for
an official act if the official act at issue has already been completed when
the solicitation is made. The evidence in this case leaves no doubt, how-
ever, that Quinn and Blanton made the solicitations to CTI and West
while they still had power to recommend favorable treatment for CTI and
West on EOAF automation contracts. Blanton’s adverse responses to
CTI’s and West’s refusals to cooperate demonstrate that her "power of
decision or action" had not been exhausted.
12 UNITED STATES v. QUINN
Finally, Quinn and Blanton requested an instruction defining rea-
sonable doubt. The district court properly refused to give such an
instruction. See United States v. Reives, 15 F.3d 42, 45 (4th Cir. 1994)
(noting that we have "consistently and vigorously condemned the
attempts of trial courts to define reasonable doubt" unless requested
to do so by the jury).
C.
Quinn and Blanton next argue that the evidence adduced by the
government was not sufficient to prove a violation of § 201(b). When
considering a sufficiency-of-the-evidence challenge to a guilty ver-
dict, we must sustain the jury’s verdict if it is supported by substantial
evidence. United States v. Glasser, 315 U.S. 60, 80 (1942). In deter-
mining whether the evidence in the record is "substantial," we view
the evidence in the light most favorable to the government and ask
whether there is "evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a defen-
dant’s guilt beyond a reasonable doubt." United States v. Burgos, 94
F.3d 849, 862-63 (4th Cir. 1996).
The evidence in this case firmly supports the convictions of Quinn
and Blanton on both Count Four and Count Seven. The evidence
showed that Quinn and Blanton, while employed with the EOAF, (1)
sought to engage CTI to perform the automation project at EOAF on
the condition that CTI would hire Quinn and pay him a salary of
$125,000 plus other compensation and (2) sought to engage West to
perform a similar project on the condition that West engage Beisler
as a subcontractor. When CTI and West refused to agree to these con-
ditions, Blanton took adverse actions against both firms, lodging com-
plaints against CTI’s performance on another contract and directing
procurement officers to withdraw the offer to West. Thus, the evi-
dence showed that Quinn and Blanton sought something of value —
compensation for Quinn and Beisler — in exchange for favorable
action on contracts for the EOAF automation project.
Quinn and Blanton argue that the evidence did not support a con-
viction on Count 4 — concerning CTI — because the automation
contract offered to CTI was "nothing more than a vague objective."
To the contrary, the evidence demonstrated that Quinn described a
UNITED STATES v. QUINN 13
detailed proposal for the work to be done and the compensation he
would receive. His letters to CTI officials leave no doubt that Blan-
ton’s request that CTI hire Quinn as project manager for the automa-
tion project related to a specific future contract.
Quinn and Blanton contend that the evidence did not support a con-
viction on Count 7 — concerning West — because the contract was
offered to West by Treasury Department procurement officers, not
Quinn or Blanton. They also argue that there could be no solicitation
of bribery where West had no intention to bribe them. It is certainly
true that the offer to West was made by procurement officers and not
Blanton directly. But it is also true that Blanton controlled the funds
that would pay the contract price; she made the request for procure-
ment; and she approved West as the contractor. The evidence further
showed that once Blanton became displeased with West — because
it refused to engage Beisler — she successfully had the offer with-
drawn. The argument that there could be no conviction here because
West did not intend to make a bribe is meritless. It is the defendants’
intent that is relevant here, not West’s. See Jennings, 160 F.3d at
1022. In sum, the evidence was sufficient to support the jury’s con-
victions of Quinn and Blanton on both bribery counts.
D.
Quinn contends that the district court erred in permitting the gov-
ernment to elicit testimony concerning his refusal to answer certain
questions during an internal Treasury Department investigation.
According to Quinn, the government’s use of testimony concerning
his silence during and after an investigatory interview violated the
rule that the government may not comment on a defendant’s exercise
of his Fifth Amendment rights. See Doyle v. Ohio, 426 U.S. 610, 618
(1976).
Doyle forbids the government to use a defendant’s silence against
him at trial where the government implicitly or explicitly advised the
defendant upon arrest that he should keep silent. 426 U.S. at 619.
Doyle was charged with selling marijuana to a police informant. Id.
at 611. At trial, Doyle testified that he had been framed by the infor-
mant. Id. at 612-13. The government sought to impeach this testi-
mony, suggesting that it was a recent fabrication, by asking Doyle
14 UNITED STATES v. QUINN
why he had not offered this explanation to the arresting officer. Id. at
614. The Supreme Court held that due process forbade the govern-
ment to comment on Doyle’s silence since that silence was induced
by the government’s giving Doyle Miranda warnings upon his arrest.
Id. at 618. Because of the nature of Miranda warnings, "every post-
arrest silence is insolubly ambiguous" and a jury is not permitted to
draw any inference from such silence except that the defendant was
exercising his Fifth Amendment rights. Id.
In evaluating Doyle-type claims, we focus on the question whether
the government made any assurances to the defendant, either explicit
or implicit, that his silence would not be used against him. See Brecht
v. Abrahamson, 507 U.S. 619, 628 (1993). Absent such assurances,
there is no due process violation in using the defendant’s silence to
impeach his testimony at trial. Thus, the government may impeach a
defendant by use of his silence prior to arrest, Jenkins v. Anderson,
447 U.S. 231, 240 (1980), or even after his arrest if no Miranda warn-
ings were given, Fletcher v. Weir, 455 U.S. 603, 606-07 (1982) (per
curiam). "Such silence is probative and does not rest on any implied
assurance by law enforcement authorities that it will carry no pen-
alty." Brecht, 507 U.S. at 628.
Even where government officers warn a defendant about the conse-
quences of his actions, there is no due process violation unless those
warnings constitute assurances that the defendant’s silence will not be
used against him. See South Dakota v. Neville, 459 U.S. 553, 565
(1983). The defendant in Neville moved to suppress evidence showing
that he refused to take a blood alcohol test after he was stopped for
driving while intoxicated. Id. at 555-56. Rejecting Neville’s Doyle
claim, the Supreme Court noted that (1) the right to refuse the blood
alcohol test, unlike the right to remain silent in a police interrogation,
was a matter of legislative grace, not constitutional imperative; and
(2) the warnings given to Neville by the police officers, unlike
Miranda warnings, did not contain "implicit assurances as to the rela-
tive consequences of his choice" whether to take the test. Id. at 565.
Neville thus reaffirms the central premise of Doyle, that due process
is denied only when the government induces a defendant’s post-arrest
silence with the assurance that such silence will not be used against
the defendant.
UNITED STATES v. QUINN 15
Special Agent Sandra Macadoff contacted Quinn and asked if he
would be willing to sit for an interview concerning allegations she
had received. Macadoff told Quinn that he was not obliged to grant
the interview, that he could leave the interview at any time, that he
was not in custody, and that no adverse administrative action would
be taken against him should he refuse to grant the interview. Quinn
agreed to the interview. Before the questioning began, Macadoff
again advised Quinn that "this was strictly a voluntary situation and
that he could leave at any time or stop the interview at any time."
During the course of the interview, Quinn declined to answer certain
questions concerning his interests in outside businesses.7 At the close
of the interview, Quinn agreed to provide Macadoff a copy of the
notes he had taken during the interview.8
Agent Macadoff’s comments to Quinn at the outset of the non-
custodial interview cannot be construed as assurances to Quinn that
his selective silence would not be used against him. These comments
gave Quinn no information about the consequences of his choice to
speak or keep silent; they merely informed him that he could choose
not to be interviewed at all or to stop the interview at any time. More-
over, Agent Macadoff’s statement that no administrative action would
be taken against Quinn if he declined the interview did not suggest
that his silence would not be used against him in a later criminal pro-
ceeding. Agent Macadoff’s comments are thus readily distinguishable
from Miranda warnings, which, by emphasizing the consequences of
speaking, carry an implied assurance that a suspect’s silence will not
be used against him. See Neville, 459 U.S. at 565. Because the inter-
view with Agent Macadoff occurred before Quinn was arrested and
before he was given Miranda warnings, we conclude that Doyle does
not apply and the district court properly allowed Agent Macadoff to
testify about Quinn’s responses to her questions.
7
Agent Macadoff testified that Quinn asked questions of her during the
interview, reading from a list of questions he had prepared previously.
As Agent Macadoff answered Quinn’s questions, Quinn made notes on
his list.
8
Although Quinn also asserts that the district court erred in denying his
motion to suppress the notes, he makes no legal argument in support of
this separate assertion. In any event, we find no violation of Quinn’s
Fifth Amendment rights in the government’s use of notes that Quinn vol-
untarily provided to Agent Macadoff during a non-custodial interview.
16 UNITED STATES v. QUINN
III.
The district court sentenced both Quinn and Blanton to 87 months’
imprisonment. Under the relevant sentencing guideline, the base
offense level for the bribery offenses was 10. U.S.S.G. § 2C1.1(a)
(1997).9 The district court then added two levels because the offense
involved more than one bribe, see id. § 2C1.1(b)(1), and another fif-
teen levels to account for the "loss" attributable to the defendants’
misconduct, see id. § 2C1.1(b)(2)(A). Having determined that Quinn
and Blanton perjured themselves at trial, the district court applied a
two-level enhancement for obstruction of justice. See U.S.S.G.
§ 3C1.1. With an offense level of 29 and a criminal history category
of I, Quinn and Blanton were eligible for prison terms ranging from
87 to 108 months.
Quinn and Blanton challenge their sentences on the grounds that
(1) the district court applied a fifteen-level enhancement to the base
offense level as the result of an incorrect "loss" calculation, (2) the
district court improperly applied a two-level enhancement for obstruc-
tion of justice based upon the defendants’ perjury at trial, and (3) the
government improperly manipulated the application of the Sentencing
Guidelines such that they were sentenced more harshly than was their
co-defendant, Beisler.
A.
Quinn and Blanton contend that the district court erred in applying
a fifteen-level enhancement to their base offense levels that resulted
from the court’s conclusion that the value of the benefit to be received
in exchange for the bribes was $13.3 million, or the sum of the gross
values of the contracts offered to CTI ($4.5 million) and West ($8.8
million). We review the district court’s interpretation of the applicable
sentencing guidelines de novo and its factual findings for clear error.
See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
"For bribery offenses, the Sentencing Guidelines provide that the
sentence shall be enhanced by the greatest of (1) the value of the brib-
9
The parties agree that the 1997 version of the United States Sentenc-
ing Guidelines applies in this case.
UNITED STATES v. QUINN 17
ery payment, (2) the ‘benefit received or to be received’ as a result
of the bribery payment, or (3) the loss to the government." United
States v. Kinter, 235 F.3d 192, 194 (4th Cir. 2000) (quoting U.S.S.G.
§ 2C1.1(b)(2)(A) (1997)). The parties agree that the loss to the gov-
ernment is not the appropriate measure in this case.
The Application Notes offer the following examples relevant to
calculation of the value of the benefit:
(1) A government employee, in return for a $500 bribe,
reduces the price of a piece of surplus property offered for
sale by the government from $10,000 to $2,000; the value
of the benefit received is $8,000. (2) A $150,000 contract on
which $20,000 profit was made was awarded in return for
a bribe; the value of the benefit received was $20,000.
U.S.S.G. § 2C1.1, comment. (n.2). These examples suggest that (1)
the bribery payment is the "anything of value" sought by the govern-
ment official, (2) the benefit to be received is the official action given
in exchange for the bribe, and (3) the value of the benefit to be
received is the net benefit to the payor, without regard for the value
of the bribe. "Where the value of the bribe exceeds the value of the
benefit or the value of the benefit cannot be determined, the value of
the bribe is used because it is likely that the payer of such a bribe
expected something in return that would be worth more than the value
of the bribe." U.S.S.G. § 2C1.1, comment. (background).
The district court increased the base offense level by fifteen levels
after finding that the value of the benefit to be received by CTI was
$4.5 million and the benefit to be received by West was $8.8 million,
for a total of $13.3 million. See U.S.S.G. § 2F1.1(b)(1). The govern-
ment now concedes, as it must, that the district court erred in calculat-
ing the benefit to be received by CTI and West by adding the gross,
rather than the net, values of the contracts. See U.S.S.G. § 2C1.1,
comment. (n.2) (stating that the value of the benefit to be received is
the net value of such benefit). The government contends that this error
was harmless, however, because the record supports a finding that the
net benefits to CTI and West exceeded $10 million, the threshold
amount warranting a fifteen-level adjustment. The district court made
no findings on any issue relevant to the net value of the benefits to
18 UNITED STATES v. QUINN
be received by CTI and West, and we decline to accept the govern-
ment’s new calculations absent such findings by the district court.
For this reason, we remand the case for resentencing. On remand,
the district court should determine the greater of (1) the value of the
bribery payment, i.e., the "anything of value" solicited by the defen-
dants from CTI and West or (2) the value of the net benefit to be
received by CTI or West had they accepted the defendants’ solicita-
tions. If the greater of these values exceeds $2,000, then the court
should consult the loss table included in U.S.S.G. § 2F1.1 and apply
the appropriate adjustment to the base offense level. See U.S.S.G.
§ 2C1.1(b)(2)(A). The government bears the burden to prove facts
supporting these values by a preponderance of the evidence, and the
district court must "make a reasonable estimate of the loss, given the
available information." United States v. Miller, 316 F.3d 495, 503
(4th Cir. 2003). The district court’s estimation of loss "need not be
determined with precision." Id.
We reject the defendants’ argument that it is impossible to value
the contracts proposed to CTI and West because they were never exe-
cuted or even reduced to specific terms. For purposes of sentencing,
there is no distinction between a solicitation of a bribe and a com-
pleted bribe. U.S.S.G. § 2C1.1, comment. (background) (stating that
"[f]ailure to complete the offense does not lessen the defendant’s cul-
pability in attempting to use public position for personal gain"); see
also United States v. Tejada-Beltran, 50 F.3d 105, 109 (1st Cir. 1995)
(noting that "failure to consummate a bribe neither detracts from the
donor’s culpability nor renders the amount involved ineligible for use
in setting the donor’s offense level"). Similarly, the Guidelines focus
on intended loss, not actual loss. See U.S.S.G. § 2F1.1, comment.
(n.8). We have relied upon this rule in holding that a defendant may
be sentenced according to the loss he or she intended, "even if this
exceeds the amount of loss actually possible, or likely to occur, as a
result of the defendant’s conduct." Miller, 316 F.3d at 502. Thus, the
district court should determine the value of the bribery payment and
the value of the benefit to be received as if the contracts proposed to
CTI and West had been executed.
For these same reasons, we also reject the defendants’ argument
that they cannot be held responsible for two proposed contracts that
UNITED STATES v. QUINN 19
concern the same subject matter since only one such contract would
have been awarded. (The scope of work offered to West included the
work proposed to CTI.) In addition, this argument is refuted by
§ 2C1.1(b), which identifies the value of the bribery payment and the
benefit to be received as specific offense characteristics. Such charac-
teristics are to be determined on the basis of "all acts and omissions
committed" by the defendants. U.S.S.G. § 1B1.3(a)(1). Quinn and
Blanton were convicted of two separate bribery crimes involving two
separate contract proposals; there is no reason to ignore one of those
crimes when calculating the loss for sentencing purposes.10
B.
Quinn and Blanton next contend that the district court erred in
applying a two-level enhancement for obstruction of justice under
U.S.S.G. § 3C1.1. This enhancement applies to a defendant who com-
mits perjury during the course of his or her prosecution. U.S.S.G.
§ 3C1.1, comment. (nn.1 & 4(b)). Application of this enhancement is
appropriate if the sentencing court finds that "the defendant when tes-
tifying under oath (1) gave false testimony; (2) concerning a material
matter; (3) with the willful intent to deceive (rather than as a result
of confusion, mistake, or faulty memory)." United States v. Jones,
308 F.3d 425, 428 n.2 (4th Cir. 2002) (citing United States v. Dunni-
gan, 507 U.S. 87, 92-98 (1993)).
The district court made the following findings at sentencing:
You had Mr. Beisler testify and you had others testify as to
what happened, and then you had both defendants who took
the stand and pretty much repudiated it. They vigorously
denied what critical witnesses said about what happened at
a house function and a dinner. And then we also heard from
Ms. Blanton as to the reason that she withdrew the West
contract, which was later determined to be — I don’t know
how else to say it other than a lie. I don’t know how else to
say it. The government in their rebuttal came back and
10
Indeed, the defendants’ offense levels were enhanced by two levels
based upon the fact that there were multiple solicitations for bribes. See
U.S.S.G. § 2C1.1(b)(1).
20 UNITED STATES v. QUINN
showed that her statement, her reasons given were false, and
the jury made that determination. She was caught in a lie.
. . . And Mr. Quinn made statements denying what had
taken place. But the point of the matter is that the jury just
didn’t buy it. They didn’t buy it. So I have to add two points
as to each for obstruction of justice.
Rather than argue that these findings were clearly erroneous, Quinn
and Blanton contend that their false testimony was not material. A
matter is material if it "would tend to influence or affect the issue
under determination." U.S.S.G. § 3C1.1, comment. (n.6). The district
court found that Quinn and Blanton lied when they denied facts
described by other witnesses concerning both the CTI and West pro-
posals. This false testimony concerned the essential facts charged in
both Count Four and Count Seven, and it was material to those
charges. See United States v. Sun, 278 F.3d 302, 314 (4th Cir. 2002)
(stating that the materiality of the defendant’s perjury at trial was "ob-
vious" where it concerned "the heart of the case," his criminal intent).
Quinn and Blanton also argue that the enhancement was inappro-
priate because the resulting sentence was higher than they would have
received had they been convicted on a separate count of perjury. This
argument is meritless. Had Quinn and Blanton been convicted of brib-
ery and perjury, those counts would have been grouped together and
the offense level assigned to that group would have been the greater
of (1) the offense level for bribery, increased by two levels or (2) the
offense level for perjury. See U.S.S.G. § 3C1.1, comment. (n.8). The
base offense level for the bribery count was 10, and the adjustment
for obstruction would yield an offense level of 12. The base offense
level for perjury was 12. U.S.S.G. § 2J1.3(a). In this case, the base
offense level of 10 for bribery was adjusted by two levels to account
for the defendants’ perjury, yielding an offense level of 12. Thus,
Quinn and Blanton were given the same treatment that they would
have received had they been convicted of a separate perjury offense.
C.
Finally, Quinn and Blanton challenge the district court’s refusal to
depart from the Guidelines range to remedy the disparity between
their base offense levels and that of Beisler. Beisler pled guilty and
UNITED STATES v. QUINN 21
was sentenced to six months of home confinement. Quinn and Blan-
ton went to trial and were sentenced to more than seven years in
prison. The defendants moved the district court for a downward
departure to correct the disparity caused by the government’s alleged
manipulation of the Guidelines. According to Quinn and Blanton, the
government inappropriately relieved Beisler of any liability for the
loss associated with the CTI and West contracts. While Quinn and
Blanton were charged with a loss of more than $13 million — result-
ing in a fifteen-level enhancement to the base offense level — Beisler
was charged with a loss of only about $124,000 — resulting in only
a seven-level enhancement.
We have held that mere disparity among co-defendants’ sentences
is not a permissible ground for departure. United States v. Withers,
100 F.3d 1142, 1149 (4th Cir. 1996); United States v. Ellis, 975 F.2d
1061, 1066 (4th Cir. 1992). A departure is not warranted even where
the disparity results from the use of different loss figures for co-
defendants. See United States v. Haehle, 227 F.3d 857, 860 (7th Cir.
2000) (rejecting a defendant’s challenge to a sentence based upon a
$1.4 million loss when his co-defendant was sentenced based upon a
$675,000 loss for the very same conduct). As the Seventh Circuit
explained in Haehle, "co-defendants have no enforceable right to
have sentences that are precisely congruent with one another. The
only thing that matters is that the sentence complies with the guide-
lines . . . ." Id. We have held that a downward departure based upon
disparity of sentences among co-defendants is not permitted "absent
proof of prosecutorial misconduct." Ellis, 975 F.2d at 1066.
The district court recognized its authority to depart and entertained
the defendants’ argument on this point. The court ruled, however, that
there was no evidence of prosecutorial misconduct in this case.
Because the district court’s refusal to depart downward followed its
conclusion that the evidence did not support a departure, its ruling on
that issue is not reviewable on appeal. See United States v. Bayerle,
898 F.2d 28, 30-31 (4th Cir. 1990).11
11
We note that because Beisler was sentenced before Quinn and Blan-
ton were sentenced, Quinn and Blanton were able to argue to the district
court that the loss figure offered by the government was inconsistent
22 UNITED STATES v. QUINN
IV.
We affirm the judgments of conviction for Quinn and Blanton. The
indictment adequately alleged the facts underlying the bribery counts,
and the jury instructions adequately stated the governing law. The
evidence adduced at trial was sufficient to support the defendants’
convictions on both bribery counts. We vacate the sentences, how-
ever, because they do not reflect an appropriate calculation of the loss
attributable to the defendants’ conduct. The case is remanded for
resentencing in accordance with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
with, and much greater than, the figure offered for Beisler. Quinn and
Blanton may raise this issue on remand, arguing that the smaller figure
offered by the government in Beisler’s sentencing is some evidence that
the loss attributable to their conduct is less than the government con-
tends. At the end of the day, it is for the district court in this case to cal-
culate the loss attributable to Quinn and Blanton’s conduct, not Beisler’s.