United States v. Jordan ( 2023 )

Case: 22-40519 Document: 00516873174 Page: 1 Date Filed: 08/25/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 25, 2023
No. 22-40519 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Laura Jordan, Mark Jordan
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:18-CR-87-1
______________________________
Before Higginbotham, Graves, and Douglas, Circuit Judges.
Per Curiam: *
The appellants, a Texas developer and a former mayor of Richardson,
Texas, appeal their convictions for bribery and tax fraud, asserting that the
bribes were merely gratuities and the district court failed to properly instruct
the jury. For the reasons stated herein, we AFFIRM in part and VACATE
in part.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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FACTS AND PROCEDURAL HISTORY
Laura Maczka (Laura) was elected to the Richardson, Texas city
council in 2011. She was elected mayor of Richardson in 2013 after running
largely on the platform of not allowing any new apartments near
neighborhoods. Laura’s term as mayor began on May 20, 2013.
Mark Jordan (Mark) is a commercial real estate developer with
ownership interests in various business entities including, but not limited to,
Sooner National Property Management, JP Realty Partners/JP-Richardson,
LLC, and JP-PAL IV MM, LLC. In 2011, JP Partners purchased 43 acres of
land and two office towers, known as the Palisades, on the west side of
Interstate 75 in Richardson. The property adjoined the Prairie Creek
neighborhood, which is where Laura lived with her husband and children. At
the time of purchase, the Palisades was zoned for retail use, office use, 121
townhomes and 300 condominiums.
On November 5, 2013, Mark requested a zoning change before the
City Planning Commission that would allow the construction of 750
apartment units on the property. On November 19, Mark amended the
request to allow for 600 apartments. The commission unanimously
recommended that the zoning plan be approved by the city council.
Residents opposed to the rezoning began organizing and started a
petition drive. On December 2, 2013, the Prairie Creek homeowners’
association issued a statement that it did not support the proposal.
Meanwhile, behind the scenes in the months prior to that, Laura and
Mark were secretly meeting, exchanging personal emails and calls, and
working together to obtain the rezoning. Laura and Mark were documented
on email chains for the Palisades project as far back as May 9, 2013, the same
month that Laura was elected mayor. In October of 2013, Laura and Mark
also set up a meeting to discuss the development project with another city
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councilmember, Steve Mitchell, who had endorsed Laura for her campaign
promise not to support the development of apartments in or adjacent to
neighborhoods.
On November 21, 2013, prior to the city council’s first vote, Laura
forwarded Mark an email with the subject “CCHA Update: Palisades
Statement to City Planning Commission” from her personal email account
and said: “FYI . . . And FTR, good thing I had such a fun afternoon
yesterday. Because last night the prairie creek mob hit me hard! You were
probably enjoying barbecue and chillaxing. I was taking bullets for you! :-)”
Later that day, Laura and Mark made plans to meet at one of his buildings
and go to the mall.
Around that same time, Mark’s wife, Karen, discovered the emails
between Laura and Mark, who had a history of infidelity. When Karen
confronted Mark, he said nothing was going on and he was only flirting with
the mayor to get what he wanted. Laura’s husband, Mike, and Mark’s former
paramour, Sarah Norris (Norris), who was also his business partner in Sooner
National Property Management, also began to suspect that Mark and Laura
were having an affair. When Mike confronted Laura, she denied anything
other than a friendship.
On December 9, 2013, the city council held a hearing on the Palisades
rezoning. A large number of residents who opposed the rezoning were in
attendance. The measure passed by a vote of five, including Laura, in favor
and two opposed. But the city also requested that the matter be brought back
with a plan for phasing the construction, leaving the vote with no legal effect.
In January of 2014, Norris hired a private investigator to follow Mark.
The investigator obtained photos and video of Mark and Laura walking arm-
in-arm out of a restaurant and going to a Holiday Inn Express. After Mike
later found the hotel invoice in his car, Laura admitted she was having an
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affair but claimed it was with someone other than Mark. In mid-January,
Laura told her husband she was going to Salt Lake City, Utah for a mayor’s
convention. She was actually meeting Mark at a $3400 per night ski resort.
About ten days later, Mark signed a contract for the option to purchase an
additional 20 acres of Palisades land if it was rezoned to allow for additional
apartments. Mark then asked the city to approve a rezoning plan to allow for
1,400 apartments on the property. On January 27, 2014, the city council held
a second vote on the rezoning and approved it by the same vote of five to two,
with Laura again voting in support.
Around the middle of April, Laura took a city business trip to San Jose,
California. Once the official business concluded, Laura stayed behind to
meet up with Mark, who was also in California on business, for a few nights
at luxury hotels at his expense. After Laura returned home from California,
Mike found additional evidence of the affair and Laura said she wanted a
divorce.
Meanwhile, Norris discovered numerous purchases by Mark on the
company credit card for restaurants, resorts, limousines, a burner phone, and
a charge for him upgrading Laura to first class for their return trip from
California. Mark told Norris he was just using Laura to get approval for his
rezoning plan. Mark later admitted to Karen that he and Laura had a
relationship. But he insisted that they had only kissed, claiming he was not
physically attracted to Laura.
The city council scheduled the third vote on Mark’s plan regarding
the proposal to add 1,400 new apartments. Numerous residents showed up
to voice opposition to the proposal, and the number of apartments was
reduced to 1,090. But on June 9, 2014 the rezoning passed again with Laura’s
support yielding another five to two vote.
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In August 2014, Mark sent a letter to the city on behalf of his
partnership seeking reimbursement for the construction of public
infrastructure for the Palisades. Mark estimated that the value of the
Palisades would be $686,300,000 by 2024. Shortly thereafter, Laura opened
a bank account in her own name and with herself as sole signatory. A series
of transactions followed wherein Mark would withdraw money and Laura
would deposit money. As one example, on September 9, Mark withdrew
$1,000 from his bank account and Laura deposited $300 in her account. Two
days later, Laura deposited $1,000 in her account while on a birthday trip
with friends to Florida. Laura also abruptly left her friends to go stay with
Mark in Rosemary Beach, Florida at his expense.
Shortly thereafter, on September 22, 2014, the city council voted
unanimously to authorize negotiations with Mark and his business partners
to reimburse them for various construction and infrastructure expenses
connected to the Palisades. Over the next several months, Mark worked with
city staff, including Laura, to reach an agreement. During that time, Mark
also continued to provide financial benefits to Laura, including multiple cash
payments, a $40,000 check, home renovations after Laura’s husband moved
out of the family home, various trips, luxury hotel stays, etc. Mark had the
$24,030.02 in home renovations done by one of his contractors, and had it
billed as “carpet stock” for one of his own buildings, MacArthur Plaza. He
also asked the contractor to “keep it on the down low.” When Karen
confronted Mark about why he was doing the remodeling work on Laura’s
home, he replied: “Because, Karen, we owe her. We owe her a lot. She’s
made us a lot of money.”
Laura and Mike divorced in January 2015. Mark also filed for divorce
from Karen on January 15, 2015. Laura filed to run for a second term as mayor
the following month. Around that same time, Mark hired Laura as a leasing
agent at Sooner National Property Management for $150,000 per year with
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a signing bonus of $15,000. Laura had no real estate experience and was not
a licensed agent. The person who had previously held the position had left
because the position only paid $70,000 per year. The media attention
generated by Laura’s involvement with the developer behind the Palisades
resulted in an ethics investigation by the city. However, neither Laura nor
Mark disclosed the sexual relationship, cash payments, luxury hotel stays,
various trips, home renovations or the $40,000 check. Thus, the investigator
found no wrongdoing, and the city entered into an agreement to reimburse
Mark some $47 million for construction and infrastructure work. Laura
voted in favor of the agreement to pay Mark the $47 million on September
22, 2014. In fact, in December of 2014, Laura was still denying to members
of the city council that she and Mark were having an affair. Laura claimed
that her parents paid for her house to be remodeled.
Around April or May of 2015, the FBI received a tip about the transfer
of money, trips and other items of value between Laura and Mark and began
an investigation. On May 18, 2015, Laura announced that she was declining
another term as mayor for the 2015-17 term.
In July of 2015, Mark had lunch with Norris, who no longer worked
with him. She was wearing a wire for the FBI. Mark said he had hired a
retired federal judge as his criminal defense attorney. He also said that the
attorney had advised him to get engaged to Laura, but Mark denied to Norris
that he would ever marry Laura. After Mark found out that the FBI was
aware of him paying for Laura’s home renovations, he started telling people
that he and Laura were getting married and that he loved her. Norris also
recorded a meeting with Mark in October 2016 wherein Mark again denied
that he would marry Laura.
Mark and Karen finalized their divorce on August 16, 2016. On May
30, 2017, the district court held a hearing as part of the grand jury’s
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investigation of the bribery case. The following day, Laura told her friend, a
reverend, that she and Mark wanted to get married right away rather than
wait to have a family event in July 2017. Mark and Laura obtained their
marriage license the very next day, June 2, and were married three days later
on June 5, less than a week after the hearing. Laura also told another friend,
“[o]ur lawyers have told us we have to get married, and hopefully we’ll marry
some day because we choose to.”
Mark and Laura were indicted in 2018 on the following seven counts:
Four counts of honest services wire fraud and conspiracy in violation of 18
U.S.C. §§ 1343, 1346, 1349; one count of conspiracy to commit bribery
concerning a program receiving federal funds in violation of 18 U.S.C. § 371;
one count of bribery concerning a program receiving federal funds in
violation of 18 U.S.C. § 666(a)(1)(B); and one count of bribery concerning a
program receiving federal funds in violation of 18 U.S.C. § 666(a)(2).
Following a nearly month-long jury trial in early 2019, Mark and Laura
were convicted on all but one count, Count 2, of honest services wire fraud.
After the district court was informed of a conversation a court security officer
had with a distraught juror, the district court granted the defendants’ motion
for a new trial. The government appealed because the district court did not
hold a hearing before granting a new trial, and a panel of this court affirmed.
See United States v. Jordan, 958 F.3d 331, 338 (5th Cir. 2020).
On December 9, 2020, the grand jury returned a superseding
indictment that included the original counts but also added five additional
charges, as follows: one count of conspiracy to defraud the United States in
violation of 18 U.S.C. § 371; two counts of willfully aiding and assisting in the
preparation and presentation of materially false tax returns in violation of 26
U.S.C. § 7206(2); and two counts of willfully aiding and assisting in the
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preparation and presentation of materially false tax returns in violation of 26
U.S.C. § 7206(2).
Following the second trial, which was held July 2 to July 23, 2021, the
jury found Mark and Laura not guilty on counts 1 and 4 (honest services wire
fraud and conspiracy) but found them guilty of the bribery and conspiracy
charges, and the tax and conspiracy charges. Laura was found guilty on
counts 5, 6, 8, 9 and 10 of the superseding indictment. Mark was found guilty
on counts 5, 7, 8, 11 and 12.
Mark and Laura filed various post-trial motions and asked the district
court to postpone sentencing until this court decided United States v.
Hamilton, 46 F.4th 389 (5th Cir. 2022). The district court denied all of the
motions. The district court also concluded that, even if this court were to
determine, as it ultimately did in Hamilton, that § 666 did not extend to
gratuities, the convictions would stand because it found beyond a reasonable
doubt that the jury verdict would have been the same even if the jury had
been instructed that a quid pro quo was required.
The total statutory maximum sentence for each defendant totaled 312
months. The district court granted a downward variance of 240 months and
sentenced each defendant to a total of 72 months of imprisonment.
Specifically, Laura received 60 months on count 5, 72 months on count 6, 60
months on count 8, 36 months on count 9, and 36 months on count 10, all to
run concurrently. Mark received 60 months on count 5, 72 months on count
7, 60 months on count 8, 36 months on count 11, and 36 months on count 12,
all to run concurrently. Each defendant was also ordered to pay a fine of
$100,000 to the United States, a special assessment of $500, and they were
jointly and severally liable for restitution of $34,275. Each defendant also
received 3 years of supervised release on each count, to run concurrently.
Thereafter, Mark and Laura appealed.
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STANDARD OF REVIEW
This court reviews a district court’s denial of a motion for judgment
of acquittal de novo. United States v. Garcia-Gonzalez, 714 F.3d 306, 313 (5th
Cir. 2013). This court must “affirm a conviction if, after viewing the evidence
and all reasonable inferences in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299,
301 (5th Cir. 2014) (internal marks and citation omitted). 1 This court’s
“review of the sufficiency of the evidence is highly deferential to the
verdict.” United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)
(internal marks and citation omitted). The standard of review is the same for
both direct and circumstantial evidence. Id.This court typically reviews jury instructions for an abuse of
discretion. See United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th Cir.
2013). However, “when, as here, a jury instruction hinges on a question of
statutory construction, this court’s review is de novo.” Id. (internal marks
and citation omitted). This court has said that a failure to instruct a jury on
every essential element is error. See United States v. Stanford, 823 F.3d 814,
828 (5th Cir. 2016). Erroneous jury instructions are subject to a harmless
_____________________
1
Mark concedes the application of this standard but asks that this court reconsider
“to allow for a judgment of acquittal to be entered when the evidence is in equipoise, which
was the rule in this circuit before it was rejected by the full court in Vargas-Ocampo in
2014.” Mark argues that Vargas-Ocampo makes this circuit an outlier, and that the majority
of other circuits apply the equipoise rule because “where an equal or nearly equal theory of
guilt and a theory of innocence is supported by the evidence viewed in the light most
favorable to the prosecution, a reasonable jury must necessarily entertain a reasonable
doubt.” He cites Winfield v. O’Brien, 775 F.3d 1, 8 (1st Cir. 2014), and United States v.
Johnson, 592 F.3d 749, 755 (7th Cir. 2010), as authority. However, the evidence here is not
equipoise, and the en banc court has already spoken in Vargas-Ocampo.
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error standard. 2 See United States v. Skilling, 638 F.3d 480, 482 (5th Cir.
2011); see also Neder v. United States, 527 U.S. 1, 18-19 (1999). “Erroneous
jury instructions are harmless if a court, after a thorough examination of the
record, is able to conclude beyond a reasonable doubt that the jury verdict
would have been the same absent the error.” Stanford, 823 F.3d at 828(internal marks and citation omitted). This court has also said that “we
construe the evidence and make inferences in the light most favorable to the
defendant.” United States v. Theagene, 565 F.3d 911, 918 (5th Cir. 2009).
This court reviews a sentencing challenge under a deferential abuse-
of-discretion standard regardless of whether the sentence is inside or outside
the Guidelines range. See Gall v. United States, 552 U.S. 38, 51 (2007). We
“must first ensure that the district court committed no significant procedural
error,” and then “consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51; see
also United States v. Hudgens, 4 F.4th 352, 357-58 (5th Cir. 2021).
Additionally, “[t]his court reviews the district court’s interpretation and
application of the Guidelines de novo and its factual findings for clear error.”
United States v. Castelo-Palma, 30 F.4th 284, 286 (5th Cir. 2022).
DISCUSSION
I. Bribery convictions
A. Quid pro quo evidence
Mark asserts that his convictions for the bribery counts should be
reversed or, at a minimum, vacated and remanded for a new trial because
there was insufficient evidence of a quid pro quo and because the district
court failed to properly instruct the jury. Mark cites Hamilton, 46 F.4th at
_____________________
2
Though conceding its application, Mark also objects to the harmless error
standard, arguing that some other circuits require more.
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398, for the proposition that a quid pro quo is an element of a § 666 violation.
Mark says that there was insufficient evidence, as summarized by the district
court, and the convictions on the bribery counts must be reversed.
Mark argues that the “heart” of the prosecution’s case for a quid pro
quo was Laura’s change of mind on the Palisades. Further, he says that Laura
voting in an inconsistent manner is not evidence of a quid pro quo. Mark also
asserts that the “lead FBI case agent testified at trial that there was no
evidence [Laura] received a bribe prior to the first vote.” 3 Mark says the
emails between he and Laura also are not evidence of a quid pro quo.
Additionally, Mark says the fact that the affair happened in the same
timeframe as the votes does not support an inference that there must have
been a quid pro quo agreement. He quotes United States v. Menendez, 291 F.
Supp. 3d 606, 624 (D.N.J. 2018), as follows: “A close temporal relationship
between political contributions and favorable official action, without more, is
not sufficient to prove the existence of an explicit quid pro quo.” Mark
asserts that this is particularly so because, after the first vote, the subsequent
votes were a “foregone conclusion.” Notwithstanding the fact that
Menendez is a lower court case from New Jersey and not controlling authority,
it does not apply because “without more” was not the case here.
Mark argues that the payments he made to Laura were made after the
final vote and, thus, were mere gratuities in reward for votes because Laura
had made him a lot of money. Notably, Mark did not reward any of the other
“yes” votes. Mark also says the facts that he and Laura hid their relationship,
_____________________
3
Mark is quoting part of an exchange during cross examination while ignoring the
rest of the agent’s testimony and other evidence in this case. Also, Laura’s counsel
acknowledged at sentencing that Laura received “time, attention and affection” prior to
the first vote. The Guidelines specifically say that “payment” means “anything of value”
and “need not be monetary.” U.S.S.G. § 2C1.1 cmt. n. 1.
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repeatedly lied, destroyed documents and emails, and got married on the
advice of counsel after the FBI launched its investigation had nothing to do
with a quid pro quo, “as opposed to a gratuity, a conflict of interest, or even
a perfectly lawful but embarrassing affair.” Mark also explicitly admits that
he paid for votes, saying: “There was insufficient evidence of a quid pro quo
bribery agreement, rather than, at worst, the payment of gratuities as a reward
for votes, to allow a jury to find a quid pro quo beyond a reasonable doubt.”
(Emphasis added).
Laura asserts that she presented substantial evidence that no quid pro
quo agreement existed, and the jury may have wrongly convicted her of
receiving a “reward” without a quid pro quo. She also asserts that only the
first vote mattered, the affair did not begin until after the first vote, and the
money, home improvements, trips, luxury hotel stays, job, etc., were all just
mere gratuities. Laura also explicitly admits payment for votes. But Laura
maintains that, as a city official rather than a federal official, she was free to
accept “rewards” or “gratuities" on federally funded projects under
§ 666(a)(1) and Hamilton. Laura argues that all four votes she made for
Mark’s Palisades project would have passed anyway without her vote. The
problem with that argument is that Laura met with other city council
members ahead of the first vote to try to get them on board. Additionally, the
record reflects that Laura and Mark had planned for her to vote against him
on one of the votes in an attempt to avoid the possible appearance of a conflict
of interest. But prior to that vote, they realized they needed her vote and
ditched the plan. Laura also adopts Mark’s briefing on this and other issues
and instead focuses on jury instructions.
The government asserts that there was sufficient evidence of a quid
pro quo. Further, the government points to the district court’s conclusion
that this is a bribery case and “[f]rom the outset, the government centered
its theory of prosecution on quid pro quo bribery” and the defense “sought
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to hold the government to proving a quid pro quo beyond a reasonable
doubt.” The government further relies on the fact that the jury was
repeatedly told during voir dire and the trial that the government had to prove
a quid pro quo.
The district court filed its Memorandum Opinion and Order on
August 3, 2022. The order disposed of multiple motions, including the
defendants’ motions to dismiss and for a new trial.
Mark focuses on three pages of the order to argue that there was
insufficient evidence of a quid pro quo. However, neither the record nor the
order support his assertions. The record establishes that Mark and Laura
were involved long before the first vote, that Laura was “taking bullets” for
Mark over the project before the first vote, and that Mark told multiple
people he was merely using Laura to get what he wanted. The record also
indicates that multiple people, including but not necessarily limited to
Norris, Karen, and the contractor who worked on Laura’s house, warned
Mark about his inappropriate involvement with the mayor to get his zoning
passed and his attempts to cover it up. Mark also told Karen that he owed
Laura (money, renovations, etc.) because she made them a lot of money.
The record reflects evidence of ongoing communications between
Mark and Laura long before the first vote that clearly indicate they were
working together to get the project approved. Laura even had Mark
answering questions from her constituents, and they found great humor in
some of his responses. They were also secretly meeting and spending time
alone together prior to the first vote, despite claiming that the affair did not
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start until after the first vote. 4 Also, the first vote basically had no effect
because the city requested that it be brought back with a plan. The argument
that only the first vote counted lacks merit. 5 Further, once the first request
was approved, Mark kept asking for more. He bought additional land, sought
approval of more apartments, requested reimbursements, and used his
influence over Laura to advance his pecuniary interest. Clearly, the first vote
was not the only one that mattered.
Moreover, even Hamilton did not go so far as to say that payments are
not bribes as long as you make them after an initial vote. Instead, in Hamilton,
this court adopted the First Circuit’s interpretation of § 666 that “reward”
is included “to prevent a situation where a thing of value is not given until
after an action is taken.” 46 F.4th at 397 (citing United States v. Fernandez,
722 F.3d 1, 23 (2013) (emphasis original)). In Fernandez, the First Circuit
said that the term reward serves to clarify “that a bribe can be promised
before, but paid after, the official’s action.” 722 F.3d at 23 (internal marks
and citation omitted).
A review of the record in this matter establishes that there was
sufficient evidence of a quid pro quo, and that distinguishes this case from
Hamilton, as discussed more fully below.
B. Quid pro quo instruction
This case basically comes down to whether the district court’s failure
under Hamilton to instruct the jury as to quid pro quo is harmless error. In
Hamilton, a panel of this court decided that 18 U.S.C. § 666 only applies to
_____________________
4
Mark and Laura do not explain why they were keeping their involvement a secret
at that point if they were neither conspiring to get the rezoning approved nor having an
affair yet.
5
Laura dismisses the three votes after the first vote as “faits accomplish” or having
already been decided.
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quid pro quo bribery. 46 F.4th at 397. In doing so, the panel determined that
§ 666 does not apply to “mere gratuities,” vacated Hamilton’s convictions
and remanded. Id. at 398.
Mark asserts, in the alternative, that the bribery convictions should be
vacated and remanded for a new trial because the district court failed to
instruct the jury on the need to find a quid pro quo agreement as an element
of a § 666 offense as required by Hamilton, and that the error was not
harmless. Mark says that the instructions here were like the instructions in
Hamilton that this court found insufficient. 6 See id. at 398. In other words,
Mark says, “the instructions in both cases permitted the jury to convict a
defendant for a gratuity or reward without finding a preconceived quid pro
quo.”
Mark says that, because the district court found that its instructions
were in error under Hamilton, the only issue before this court is whether the
error was harmless. He further says the government acknowledged in its
response to post-trial motions that the jury could have reasonably found
either a quid pro quo or a reward. Mark asserts that the evidence in this case
plainly establishes that the jury could have acquitted of a quid pro quo. He
argues that, even if this court finds that the evidence was sufficient, it still
must find that the failure to properly instruct the jury was not harmless
because the district court’s analysis did not draw all inferences in favor of
_____________________
6
In his initial brief, Mark acknowledged that the government had filed a petition
for rehearing in Hamilton in which it argued that the instructions did require the jury to find
a quid pro quo to convict. However, Mark then argued that the district court here did not
give the same instructions as Hamilton. Thus, he asserted that, even if the rehearing was
granted, it would not affect this case. En banc rehearing was denied in Hamilton on
February 17, 2023, with seven judges voting in favor of rehearing and nine against. United
States v. Hamilton, 62 F.4th 167 (5th Cir. 2023). Regardless of whether Hamilton was
correctly decided, there are key distinctions between the two cases, as discussed herein.
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acquittal as required. Also, Mark asserts that the district court erred in
relying on the statements of counsel in opening and closing arguments to
conclude that the case was argued as a bribery case and the jury must have
found a quid pro quo. 7
Laura largely argues the same.
The government concedes that the district court committed a
Hamilton error when instructing the jury on the § 666 charges but asserts that
the error was harmless. The government is correct. The district court made
an explicit finding that it was concluding beyond a reasonable doubt that
Mark and Laura would have been convicted even under the correct
instruction. The record supports that finding.
Mark and Laura conceded that the payments were for votes but that
under Hamilton they were merely “gratuities” or “rewards,” and she was
not a federal official.
In Hamilton, the panel said that “Ruel Hamilton gave money to
members of the Dallas City Council. He received nothing tangible in return.”
Id. at 391 (emphasis added). That was because the low-income-housing tax
credits Hamilton sought were ultimately not granted by the Texas
Department of Housing and Community affairs after the local officials voted
to recommend them. Id. The panel also said, in instructing the jury, “the
district court (over Hamilton’s objections) told the jury that neither a quid-
pro-quo exchange nor any ‘official act’ by the councilmembers was
required.” Id. at 393. The panel said that “it is an abuse of discretion ‘to
apply an erroneous view of the law.’” Id. at 394 (quoting United States v.
Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019)) (emphasis original). The panel
_____________________
7
Mark concedes that the jury was properly instructed that statements of counsel
were not evidence and irrelevant to the harmless error determination.
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then concluded “that § 666 does, in fact, require a quo; a quid alone will not
suffice. And the jury instruction that the district court gave did not convey
that.” Id. at 394.
Here, Mark received much in return, as discussed previously herein.
While there was not a specific instruction, the jury was told repeatedly that it
was a quid pro quo case, and the evidence clearly supported a quid pro quo.
The parties agree that the dispositive issue is whether the district court’s
error was harmless.
As stated previously, “[e]rroneous jury instructions are harmless if a
court, after a thorough examination of the record, is able to conclude beyond
a reasonable doubt that the jury verdict would have been the same absent the
error.” Stanford, 823 F.3d at 828 (internal marks and citation omitted). The
district court made that explicit finding in case this court decided Hamilton
as it ultimately did. The record supports that finding. Thus, any error in the
district court’s failure to explicitly instruct on quid pro quo was harmless.
C. Motive instruction
The district court instructed the jury, in relevant part, as follows:
During the trial, evidence was presented regarding the
defendants’ possible motives for their actions. The fact that an
action may have been motivated, in part, by friendship or a
romantic interest is no defense. Actions taken with a dual
motive constitute bribery so long as one of the motives is to
influence or reward a public official, or, in the case of the public
official, to be influenced or rewarded. On the other hand, if
actions were entirely motivated by legitimate reasons, like
romantic interest, then they do not constitute bribery.
Mark asserts that the convictions for the bribery counts should be
vacated and remanded for a new trial because the district court’s instruction
on mixed motive was an error that allowed the jury to convict without finding
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No. 22-40519
that his motive was primarily or materially corrupt. He incorporates Laura’s
arguments in her opening brief in support of the proposition that the
instructions improperly allowed the jury to convict even if it did not find that
the government proved Mark’s motives were not primarily or materially
corrupt. Finally, he asserts that the “instructional error merits a new trial on
the bribery counts and on the tax conspiracy count that is premised on the
bribery counts.”
Laura asserts that the jury instructions unconstitutionally shifted the
government’s burden to her by saying she could be found guilty if at least one
of her motives of accepting benefits from Mark was to be influenced or
rewarded for official actions and she had the burden of proving the
affirmative defense that acceptance of the benefits was entirely motivated by
legitimate reasons. Laura says that means that jurors could have interpreted
that to mean if only one percent of her motive was corrupt, she was still guilty.
Laura also argues that including “or rewarded” in the instruction violated
Hamilton because she was free to accept “rewards” for votes. 8 Laura also
cites inapplicable cases for the proposition that there should be a materiality
requirement read into 18 U.S.C. § 666(a)(1). Laura says that would mean a
public official’s corrupt motive in accepting a bribe would have to be more
than incidental or irrelevant at the time she accepted the bribe. She then cites
what she says is an analogous case for the proposition that: “Otherwise, the
improper motive would not be significant enough to call into question the
integrity of the public official’s actions.” See United States v. Sun-Diamond
Growers of Calif., 526 U.S. 398, 406-07 (1999).
_____________________
8
As discussed herein, Hamilton does not establish that rewards for votes are lawful
in every circumstance.
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The government correctly asserts that the minor corrupt motive
argument was raised for the first time on appeal, and a materiality objection
was not raised at trial. Thus, it is reviewed for plain error. With regard to
the burden shifting argument, which was raised at trial pertaining to the
instruction defining “corruptly,” the government asserts that the district
court did not abuse its discretion. See United States v. Sanjar, 876 F.3d 725,
740 (5th Cir. 2017). The government also sets out that the district court did
not shift the burden of proof. We agree.
Notwithstanding our agreement that the district court did not shift the
burden of proof, the cases cited by Laura are inapplicable. For example, in
Sun-Diamond Growers, the Supreme Court was talking about why 18 U.S.C.
§ 201(c)(1)(A) does not criminalize token gifts such as a school baseball cap
or a replica jersey from a championship team, not large cash payments or
anything else of the sort that occurred here. See id., 526 U.S. 406-07.
Significantly, Sun-Diamond Growers also does not support Laura’s argument
regarding materiality or motive. Laura acknowledges as much, then asserts
alternatively, “the doctrines of lenity and constitutional-doubt require such
an interpretation of the statute,” citing United States v. Tucker, 47 F.4th 258,
261 (5th Cir. 2022). But Tucker, which involved the sufficiency of the
evidence of convictions for making false statements to a federally licensed
firearms dealer and possession, is not analogous and provides no authority
for Laura’s argument here. Id. at 259. In dicta, this court merely mused as
to what canons might come into play should it “venture beyond the statute’s
plain language.” Id. at 261. Further, there is no “materiality” requirement
in § 666(a), and Mark and Laura fail to cite any controlling authority
requiring us to insert one now.
This issue has no merit, and the district court did not plainly err or
abuse its discretion.
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D. Federal or local funds
Mark asserts that the government failed to establish that the conduct
underlying the bribery counts affected federal or local funds as required by
§ 666. Thus, Mark says that the application of § 666 to him was
unconstitutional and the district court’s denial of Mark’s motion for entry of
a judgment of acquittal should be reversed under Sabri v. United States, 541
U.S. 600, 604-06 (2004); United States v. Phillips, 219 F.3d 404, 411 (5th Cir.
2000); and United States v. Spano, 401 F.3d 837, 841 (7th Cir. 2005).
Finally, Mark asserts that his constitutional challenge was not
untimely in reference to what he says was the district court faulting him for
not filing a motion to dismiss the superseding indictment on the basis that
§ 666 cannot be constitutionally applied because it fails to allege that the
conduct had an effect on local funds. Mark cites a nonbinding case from the
Northern District of Georgia for the proposition that as-applied
constitutional challenges are not appropriately raised in pre-trial motions to
dismiss. Mark then concedes that, if he had filed such a motion, the
government would have argued that the indictment, on its face, alleged an
impact on local funds of $47 million. Further, he says that even if he was
required to move on this issue before trial, it was not waived and this court
could review his argument for plain error under United States v. Vasquez, 899
F.3d 363, 373 (5th Cir. 2018). Mark says his challenge satisfies plain error
because “it raises a clear constitutional concern” and would affect his rights
“since it invalidates the convictions on the bribery counts.” Laura joins
Mark’s argument on this issue.
The government asserts that the district court did not plainly err in
rejecting the untimely Article I challenge as a basis for post-trial dismissal or
acquittal. Further, the government points out that precedent forecloses the
claim.
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Mark and Laura were charged in 2018. They moved to dismiss other
counts prior to their first trial. They were convicted the first time in 2020.
They moved to dismiss other counts again. After they were retried and
convicted a second time, they argued in post-verdict motions that the bribery
counts should be dismissed because the application of § 666 was
unconstitutional. Mark and Laura argued that their conduct involved only a
city zoning issue that did not put any federal funding at risk.
The district court found the Article I claim untimely under Rule 12,
which provides that such a motion must be made before trial. See Fed. R.
Crim. P. 12(b)(3). The district court also found that Mark and Laura did not
show good cause for an exception under Fed. R. Crim. P. 12(c)(3).
Additionally, to the extent that Mark and Laura were not challenging the
indictment but rather the sufficiency of the evidence at trial, the district court
rejected the argument on the merits.
As the district court correctly found, the elements of § 666 do not
require the government to prove that the conduct is traceable to federal
funds. Section 666, in relevant part, states:
(a) Whoever, if the circumstance described in subsection (b) of
this section exists--
(1) being an agent of an organization, or of a State, local, or
Indian tribal government, or any agency thereof--
...
(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
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(2) corruptly gives, offers, or agrees to give anything of
value to any 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.
18 U.S.C. § 666(a). Section 666 further says:
(b) The circumstance referred to in subsection (a) of this
section is that the organization, government, or agency
receives, in any one year period, benefits in excess of $10,000
under a Federal program involving a grant, contract, subsidy,
loan, guarantee, insurance, or other form of Federal assistance.
18 U.S.C. § 666(b).
Additionally, none of the cases cited by Mark and Laura establish
otherwise. In Sabri, the Supreme Court answered the question of “whether
18 U.S.C. § 666(a)(2), proscribing bribery of state, local, and tribal officials
of entities that receive at least $10,000 in federal funds, is a valid exercise of
congressional authority under Article I of the Constitution” by concluding
that it is. Id., 541 U.S. at 602. As the Court further explained:
It is true, just as Sabri says, that not every bribe or
kickback offered or paid to agents of governments covered by
§ 666(b) will be traceably skimmed from specific federal
payments, or show up in the guise of a quid pro quo for some
dereliction in spending a federal grant. . . . But this possibility
portends no enforcement beyond the scope of federal interest,
for the reason that corruption does not have to be that limited
to affect the federal interest. Money is fungible, bribed officials
are untrustworthy stewards of federal funds, and corrupt
contractors do not deliver dollar-for-dollar value. Liquidity is
not a financial term for nothing; money can be drained off here
because a federal grant is pouring in there. And officials are not
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No. 22-40519
any the less threatening to the objects behind federal spending
just because they may accept general retainers. . . . It is
certainly enough that the statutes condition the offense on a
threshold amount of federal dollars defining the federal
interest, such as that provided here.
Id. at 605-06 (internal citations omitted). In other words, the Court said that
the $10,000 threshold alone satisfies Article I without any requirement that
the federal money be directly connected as an element to the offense. Id.; see
also United States v. Franco, 632 F.3d 880, 883 (5th Cir. 2011). While Sabri
involved a facial challenge, the Court gave clear indications that an as-applied
challenge would not have fared any better. Sabri, 541 U.S. at 609.
The record and the applicable authority support the district court’s
findings. This issue has no merit.
II. Tax convictions
A. Vindictive Prosecution
Mark asserts that the tax counts should be dismissed for vindictive
prosecution, or in the alternative, the issue should be remanded to the district
court for an evidentiary hearing. Mark says that, because the government
added the tax counts only after the district court vacated the convictions in
the first trial and ordered a new trial, the timing is sufficient to trigger the
presumption of vindictiveness. He cites United States v. Dvorin, 817 F.3d
438, 455 (5th Cir. 2016), as authority.
In Dvorin, the government added a forfeiture notice in the second
superseding indictment. Id. at 454. Dvorin argued that the addition was an
act of prosecutorial vindictiveness. Id. at 455. In reviewing the matter, this
court said, “[t]he defendant must prove prosecutorial vindictiveness by a
preponderance of the evidence, and may do so either by showing actual
animus or showing sufficient facts to give rise to a presumption of
vindictiveness.” Id. (internal marks and citation omitted). In determining
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whether a “presumption of vindictiveness” applies, “the court examines the
prosecutor’s actions in the context of the entire proceedings.” Id. (internal
marks and citation omitted). If “the course of events provides no objective
indication that would allay a reasonable apprehension by the defendant that
the additional charge was vindictive,” then a presumption of vindictiveness
applies. Id. (internal marks and citation omitted). To overcome the
presumption, the government must prove “by a preponderance of the
evidence that events occurring since the time of the original charge decision
altered that initial exercise of the prosecutor’s discretion.” Id. (internal
marks and citation omitted). The court concluded that Dvorin had alleged
facts sufficient to invoke the presumption and the government had not
rebutted the presumption. See id.Here, the government asserted that it had planned to bring the tax
counts in the original indictment, but the internal DOJ approval process was
too slow. The approval process was apparently restarted when “there was a
realistic possibility” the convictions would be overturned.
Mark argues that this does not provide a non-retaliatory explanation
for the government’s decision. Mark also argues that the district court
erroneously believed he had forfeited the issue by not raising it in a pretrial
motion to dismiss. Mark says that “[a]llowing a presumptively vindictive
prosecution to stand would constitute a clear and obvious error that would
affect defendants’ substantial rights, and therefore satisfies the plain error
standard.” (Internal marks and citation omitted). Thus, he says the
convictions on the tax counts must be reversed. Mark also argues that, at the
very least, the court should remand for an evidentiary hearing, citing the
nonbinding case of United States v. Tingle, 880 F.3d F.3d 850, 856 (7th Cir.
2018). In doing so, Mark again contradicts himself by claiming the
government “offered no explanation for its charging decision” even though
he already conceded that the government did offer an explanation that he
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No. 22-40519
believed was insufficient. Regardless, we conclude that Mark is unable to
establish a presumption of vindictiveness because the government offered an
explanation sufficient to establish an objective event or non-retaliatory basis
for adding the tax counts. See Dvorin, 817 F.3d at 455; see also United States
v. Saltzman, 537 F.3d 353, 358-64 (5th Cir. 2008). Thus, we affirm on this
issue.
B. Insufficient evidence
Mark asserts that there is insufficient evidence that he possessed the
heightened level of willfulness needed to support a conviction on the tax
counts. He says that, for him to be found guilty of the tax counts, the jury
had to find he had actual knowledge of the pertinent legal duty and violated
it. See Cheek v. United States, 498 U.S. 192, 200-02 (1991). Mark argues that
the district court failed to identify the relevant evidence in denying his
motion for a judgment of acquittal.
With regard to the tax conspiracy count, Mark argues that the district
court failed to identify evidence that he had knowledge of whether Laura
reported the benefits he provided her as income on her tax returns.
Additionally, Mark argues that, if this court agrees there was insufficient
evidence of a quid pro quo, then “there was no evidence Mr. Jordan believed
that non-quid pro quo gratuities” are taxable income.
The parties agreed that Laura did not report the benefits she received
from Mark as income on her tax returns. However, she asserts that her
conviction on these charges is tainted by the same jury instructions that she
claims transformed her claimed rewards for votes into illegal bribes. Laura
also asserts that she did not report the $52,000 in cash and a check, the
$25,030 in home renovations, the travel expenses, and various other
payments, including her legal fees from the ethics investigation, from Mark
because she considered them all to be gifts. Laura also argues that authority
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supporting the proposition that even “rewards” become “income” does not
apply to her. For example, Laura says that Dobbe v. Comm’r, T.C. Memo
2003-330, 2000 WL 1586383 at *11-12 (U.S. Tax Ct. Oct. 25, 2000), involved
a gift from an employer to an employee for no other reason than an
employment relationship, as opposed to someone having a romantic
relationship with their boss, like her. While one of the deductions in Dobbe
stemmed from a gift of golf clubs to a salesman, others stemmed from
payments for personal benefit of the taxpayers, who were married
shareholders of their wholly owned corporation. Id. Laura then argues that
“Mark could have paid benefits to Laura for reasons other than her economic
contribution as an employee, namely, because they had an affair or because
of her acts as mayor (without a quid pro quo).” Thus, Laura says, the
Hamilton error also requires reversal of all of the tax counts.
As we have previously concluded, any Hamilton error was harmless.
Additionally, the record provides sufficient evidence of willfulness. This
issue has no merit.
C. Conspiracy
Mark asserts that the tax conspiracy count should be reversed because
there is insufficient evidence of an agreement to falsify tax returns to support
a conviction. Mark cites one case as general authority, United States v.
Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir. 1998), then argues, again,
that the district court failed to identify the evidence in denying his motion for
judgment of acquittal. Mark then discusses the “one paragraph the district
court devoted to this issue,” but fails to provide a record citation or any other
authority. In the alternative, Mark argues that, if the tax conspiracy count is
not reversed, it should be remanded for a new trial. Laura likewise argues for
reversal.
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The government concedes this issue, acknowledging that evidence of
the agreement to commit bribery and attempts at concealment was
insufficient to support the conspiracy charge under 18 U.S.C. § 371. We
agree, and we vacate the convictions and sentences of Mark and Laura on this
count.
III. Sentence
Mark asserts that his sentence should be vacated and remanded for
resentencing. He asserts that the sentence was driven entirely by the bribery
counts, with no additional offense levels added based on the tax counts. If
the bribery counts are reversed, but any of the tax counts are not, he asserts
that the sentence on the tax counts should be vacated and remanded for
resentencing. However, we affirm on the bribery counts. Mark asserts that,
if the bribery counts stand, the errors in application of the Guidelines tainted
the sentencing process and the case should be remanded for resentencing.
He says that this resulted in a non-Guidelines sentence being imposed. 9
The district court adopted the PSR’s calculation of an offense level of
42 and a criminal history category of 1, which provided for a Guideline range
of 312 months. 10 Mark argues that the district court declined to follow the
Guidelines and ordered a non-Guidelines sentence of 72 months. Mark also
argues that the correct Guideline range should have been 33 to 41 months for
an offense level of 20 and a Criminal History Category I. Additionally, Mark
argues that the PSR did not indicate the total value of the payments Mark
made to Laura, the total value of anything obtained by Laura or the total
benefit received by Mark. He says, instead, that the PSR based the
_____________________
9
Mark’s counsel agreed at sentencing that a non-Guidelines’ sentence was
appropriate.
10
The statutory maximum for a violation of § 666(a)(1) is 120 months.
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enhancement under the § 2B1.1 table solely on the $42,777,079 he was to
receive.
The PSR set out the following:
Between October 6, 2011, and September 4, 2014, Mark Jordan
(Mark), a commercial real estate developer, and his limited
liability company (LLC) partnerships (JP-Richardson, LLC,
and JP-PAL IV MM, LLC) formed multiple Limited Liability
Company Agreements (JP-KBS Richardson Holdings, LLC;
JP-Richardson Holdings II, LLC; and JP-Palisades IV, LLC)
(Company Agreements) with equity investors that led to the
purchase of Palisades, an 80-acre proposed mixed-use
development within Richardson, Texas. The total Palisades
project was purchased for $54,955,000. Through these
Agreements, Mark Jordan acted as the managing partner.
The PSR said that Mark had a ten percent ownership interest in each
of JP-Richardson, LLC and JP-PAL IV MM, LLC. With regard to JP-
Richardson, LLC, the PSR said:
JP-Richardson, LLC’s 10 percent interest was comprised of 20
percent ownership by 2004 Jordan Family Trust, of which
Mark was the Trustee, and 80 percent ownership by JP
Richardson Investors Joint Venture, of which the 2004 Jordan
Family Trust had 62.33 percent ownership. Therefore, Mark
owns 6.233 percent of JP-Richardson.
Mark objected to the PSR’s statements regarding his ownership
interest in the Palisades development. Mark’s objection was largely centered
around the fact that he and Karen eventually divorced, which divided his
ownership interest. The probation officer’s response maintained that, at the
time Mark committed the criminal conduct, he held a 6.233 percent interest
in the Palisades development, and that amount was consistent with trial
evidence.
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The PSR divided Mark’s convictions into two groups pursuant to
U.S.S.G. § 3D1.2. The bribery group, counts five and seven, started with a
base offense level of 12 under U.S.S.G. § 2C1.1, and included the following
increases: 2 levels under § 2C1.1(b)(1) for multiple bribes; 22 levels under
§ 2C1.1(b)(2) for an expected benefit of $42,777,079; 4 levels under
§ 2C1.1(b)(3) for involving an elected public official; and 2 levels under
§ 3C1.1 for obstruction by deleting emails. The adjusted offense level for this
group was 42.
Specifically, the PSR said: “Based on Mark Jordan’s 6.23 percent
ownership stake in Palisades and future valuation of Palisades at
$686,300,000, as detailed in his Request for Development Incentives
submitted to the City of Richardson, his benefit to be received in return for
his bribes to Laura Jordan amounts to $42,777,079.”
U.S.S.G. § 2C1.1(b)(2) provides that the table in § 2B1.1 applies when
the value of the payment or the benefit received exceeds $6,500. For a loss
of more than $25 million, the table provides an increase of 22 levels. See
U.S.S.G. § 2B1.1(b)(1)(L). The commentary to § 2C1.1 states:
“Loss”, for purposes of subsection (b)(2), shall be determined
in accordance with Application Note 3 of the Commentary to
§ 2B1.1 (Theft, Property Destruction, and Fraud). The value
of “the benefit received or to be received” means the net value
of such benefit. Examples: (A) 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. (B) A
$150,000 contract on which $20,000 profit was made was
awarded in return for a bribe; the value of the benefit received
is $20,000. Do not deduct the value of the bribe itself in
computing the value of the benefit received or to be received.
In the preceding examples, therefore, the value of the benefit
received would be the same regardless of the value of the bribe.
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U.S.S.G. § 2C1.1 cmt. n. 3.
Mark argues that the votes would have passed without Laura. But
they did not pass without Laura or her influence. He also asserts that Laura
supported the Palisades project before she met him. However, there is
substantial evidence in the record that she did not, and that she campaigned
on her opposition to apartments near neighborhoods. Regardless, Mark says
any value received would have been received even without the bribes. In
support, Mark cites United States v. Griffin, 324 F.3d 330, 367 (5th Cir. 2003)
which he summarizes as: “[R]eversing sentence based on Guidelines
calculation that included salary negotiated before alleged bribe.” But Mark
fails to establish how that is applicable here.
Mark also argues that the $42,777,079 did not represent the “net
value of the benefit” as required under § 2C1.1 cmt. 3, citing United States v.
Ricard, 922 F.3d 639, 657-58 (5th Cir. 2019), as authority. He asserts that the
amount is based on an incorrect assumption that he held a 6.233 percent share
of the future value of the Palisades. Instead, he says, “[t]he 6.233%
represented the district court’s mistaken understanding of Mr. Jordan’s
share of the vacant undeveloped land.” 11 Mark also says that he held
different percentage stakes in different parcels to be developed.
Ricard was a case involving Medicare kickbacks and a guideline range
calculated under U.S.S.G. § 2B4.1(b)(1) for commercial bribery. Id., 922
F.3d at 656-57. U.S.S.G. § 2B4.1(b)(1) states, in relevant part:
If the greater of the value of the bribe or the improper benefit
to be conferred (A) exceeded $2,500 but did not exceed
$6,500, increase by 1 level; or (B) exceeded $6,500, increase by
_____________________
11
The record indicates that there were two existing buildings and a parking garage
located at the Palisades at the time it was acquired.
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the number of levels from the table in § 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount.
U.S.S.G. § 2B4.1(b)(1).
While noting that the commentary to § 2B4.1 cross-references
U.S.S.G. § 2C1.1, this court has previously interpreted the meaning of the
“value of the improper benefit conferred” and concluded that direct costs,
but not indirect costs, should be deducted from the gross value to determine
a net value. See United States v. Landers, 68 F.3d 882, 884-85 (5th Cir. 1995).
This court also concluded that the district court’s finding accurately
represented the net value because Landers failed to establish any other direct
costs to be deducted. Id. at 885. This court also concluded that “net value”
does not mean “net profits,” and relied on a Third Circuit case for the
following: “This concept of ‘net value received’ has nothing to do with the
expense incurred by the wrongdoer in obtaining the net value received. This
is clear from the Note’s instruction that the value of the bribe is not to be
deducted in calculating the ‘net value.’” Id. (quoting United States v.
Schweitzer, 5 F.3d 44, 47 (3d Cir. 1993). Further, “[t]he harm caused by a
bribe is the value lost to a competing party had the bribe not been paid.” Id.(citing United States v. Ford, 986 F.2d 1423 (6th Cir. 1993)). “That harm is
independent of the value of the bribe.” Landers, 68 F.3d at 885.
Citing Landers, this court in Ricard concluded that the district court
erred by not deducting the direct costs from the value of the treatment
provided in calculating the improper benefit conferred. See Ricard, 922 F.3d
at 658. Importantly, this court did so after concluding that Ricard had
“satisfied her basic burden to proffer evidence” showing that patients were
receiving legitimate treatment. Id. The court also clarified that, while the
government has the burden of proving facts in support of a sentencing
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enhancement, “Ricard’s burden was ‘to establish that [Progressive] incurred
any direct costs.’” Id. (quoting Landers, 68 F.3d at 885).
Here, Mark did not satisfy his basic burden to establish any direct
costs or applicable deductions. See id.; see also Landers, 68 F.3d at 885.
Moreover, the record and the authority support the PSR’s calculations,
which were confirmed by Mark’s own documents and statements recorded
at city council meetings. Further, Griffin explicitly reiterated that “[t]he
district court need not determine the value of the benefit with precision.”
Id., 324 F.3d at 366. 12 “In fact, in determining the amount of benefit to be
received, courts may consider the expected benefits, not only the actual
benefits received.” Id., 324 F.3d at 366. Thus, there was no error.
Even if there had been error, it would be subject to a harmless error
standard. See United States v. Halverson, 897 F.3d 645, 651 (5th Cir. 2018).
To satisfy harmless error, the government must show that “(1) that the
district court would have imposed the same sentence had it not made the
error, and (2) that it would have done so for the same reasons it gave at the
prior sentencing.” Id. (internal marks and citation omitted). The
government is easily able to do so here, as the district court explicitly said it
would impose the same sentence for the same reasons even if Mark and Laura
prevailed on every objection on appeal.
Further, though Mark does not challenge the substantive
reasonableness, the sentence was substantively reasonable. See Hudgens, 4
F.4th at 358.
_____________________
12
Citing Landers, 68 F.3d at 884 n.2.
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Case: 22-40519 Document: 00516873174 Page: 33 Date Filed: 08/25/2023
No. 22-40519
IV. Evidentiary ruling
Laura asserts that the district court committed reversible error by
admitting evidence of a prior marital infidelity for the purpose of proving that
she was a liar. The district court found the evidence admissible pursuant to
Rules 404(b), 608 and 403 of the Federal Rules of Evidence.
The government agrees with Laura that the evidence was not
admissible under Rule 404(b). With regard to whether it was admissible
under 608(b), “the government believes that the better end of the argument
is that Laura’s prior infidelity was not admissible under Rule 608(b).”
However, the government also asserts that any error was harmless.
As Laura and the government state, we review a district court’s
evidentiary rulings under a deferential abuse of discretion standard, subject
to a harmless error analysis. See United States v. Perry, 35 F.4th 293, 325 (5th
Cir. 2022); see also United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003).
Laura cites United States v. Stone, 472 F.2d 909, 916 (5th Cir. 1973),
for the proposition that the trial court there properly refused to allow the
defendant to seek to impeach a key prosecution witness with her marital
infidelity. She also cites some non-controlling authority for the general
proposition that, under Rule 608, a witness’ marital infidelity is simply not
probative of truthfulness or untruthfulness. In Stone, a Georgia case
involving a kidnaping, brutal rape, and maiming, the trial court refused to
make an in camera inspection of the government’s files at the defendant’s
request so that he could discover whether the government had any evidence
regarding the marital infidelity of the victim while her husband was in
Vietnam. Id. Stone presented a different scenario than we have here, where
Laura, neither a prosecution witness nor a victim, claimed she was having an
affair and in love, not engaging in bribery or corruption and was cross-
examined about it. But we will presume, without deciding, that the evidence
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Case: 22-40519 Document: 00516873174 Page: 34 Date Filed: 08/25/2023
No. 22-40519
was inadmissible for purposes of determining harmless error. Under the
doctrine of harmless error, the evidentiary ruling will be reversed only if it
affected Laura’s substantial rights. See Adams v. Memorial Hermann, 973
F.3d 343, 351 (5th Cir. 2020).
Laura asserts that the evidence that she had another extra-marital
affair prior to her affair with Mark and lied about it was not harmless because
it “invoked a dark image of an immoral woman in search of sex for votes. It
went to the heart of the theory of the defense – that Laura accepted benefits
from Mark out of love and affection.”
The record does not support Laura’s argument. The record is replete
with evidence of Laura’s dishonesty and her extramarital affair with Mark.
Additionally, when Laura initially admitted her extramarital affair with Mark
to her husband, she lied and said the affair was with someone other than
Mark. Moreover, there was no suggestion that the previous affair was with
someone who had matters pending before the city council. Because Laura is
unable to establish that the evidentiary ruling affected her substantial rights,
any error was harmless.
CONCLUSION
For the reasons stated herein, we AFFIRM in part and VACATE in
part.
34