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United States v. Gilbert

United States District Court, N.D. Alabama, Southern Division

October 22, 2018

UNITED STATES OF AMERICA,
v.
JOEL IVERSON GILBERT and DAVID LYNN ROBERSON, Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

         The Government charged Joel Iverson Gilbert and David Lynn Roberson with six counts[1] arising from their alleged conspiracy to bribe Oliver Robinson, a former Alabama state legislator, to take actions to thwart the EPA's proposal to expand the 35th Avenue Superfund Site in north Birmingham and to add the Site to the National Priorities List (“NPL”). Doc. 1. A jury subsequently found the Defendants guilty on all six counts. Docs. 251 and 252. Presently before the court are the Defendants' Motions for Judgement of Acquittal Under Rule 29(c) or, alternatively, for a New Trial Under Rule 33(a). Docs. 266 and 267. After careful review of the briefs and the relevant law, the court finds that substantial evidence supports the jury's verdict and that the motions are due to be denied.

         I. LEGAL STANDARD

         A district court may overturn the jury's verdict and enter a judgment of acquittal under Rule 29 only “if there is insufficient evidence to sustain the verdict.” United States v. Williams, 390 F.3d 1319, 1324 (11th Cir. 2004). When deciding a Rule 29 motion, the “court must view the evidence in the light most favorable to the government, . . . resolve any conflicts in the evidence in favor of the government, [] and [] accept all reasonable inferences that tend to support the government's case.” United States v. Ward, 197 F.3d 1076, 1079 (11th Cir. 1999) (citations omitted). “A conviction must be upheld unless the jury could not have found the defendant guilty under any reasonable construction of the evidence.” United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010) (quotation omitted). Because the jury is “free to choose between or among the conclusions to be drawn from the evidence presented at trial, ” the evidence “need not rebut all reasonable hypotheses other than guilt.” United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (quotation omitted).

         II. ANALYSIS

         Roberson argues for an acquittal or new trial on five grounds: (1) the joint trial of this case unfairly prejudiced his advice of counsel defense, (2) there was insufficient evidence that Robinson performed any official acts, (3) there was insufficient evidence of Roberson's corrupt or fraudulent intent, (4) the court's jury instructions were erroneous and prejudicial, and (5) the verdict is contrary to the weight of the evidence. Doc. 266. Gilbert joins in Roberson's second, fourth, and fifth arguments. Doc. 267. The court addresses first the two arguments that pertain only to Roberson's motion and then the Defendants' collective remaining arguments.

         A. Whether the Joint Trial Unfairly Prejudiced Roberson's Advice of Counsel Defense

         As his first contention of error, Roberson renews his objection to the court's denial of his motions to sever.[2] Roberson contends that the joint trial substantially prejudiced his defense because, in order to protect Gilbert's rights under the Confrontation Clause, the court precluded Roberson from introducing a purportedly exculpatory portion of his pre-indictment interview with the FBI. Doc. 266 at 25; see also doc. 284 at 71-74; Bruton v. United States, 391 U.S. 123 (1968). Roberson contends that the omitted portion would have been admissible in a separate trial under the rule of completeness. Doc. 266 at 25, 27-29.

         At issue here is a redacted version of FBI Agent Ashley Hunt's written summary of Roberson's interview with the FBI. Doc. 284 at 13-28. The redacted summary that Agent Hunt read into evidence omitted the highlighted sentences from the following paragraph:

After the Hubbard trial, Roberson considered what they were doing, i.e., contracting with a state representative, in light of the ethics law but determined that the area targeted by the campaign was not in Robinson's district. Roberson stated that they (Drummond) have always been very careful, and he (Roberson) has a reputation to maintain. Roberson had a conversation with Gilbert about ethics considerations. Roberson wanted to know if it was a problem for him (Roberson) to be associated with the effort because he was a lobbyist. Gilbert later told Roberson that he checked with Greg Butrus and Chad Pilcher at Balch, and there was no problem with what they were doing.

Doc. 266-2 at 7 (emphasis added); see also doc. 284 at 20. The court allowed Agent Hunt to read only the first two sentences, doc. 284 at 20, excluding the rest of the paragraph pursuant to Bruton to protect Gilbert's right to confront his accusers, id. at 71-74. Roberson argues that the decision violated the rule of completeness and substantially prejudiced his advice of counsel defense.

         Under the rule of completeness, which is memorialized in Rule 106 of the Federal Rules of Evidence, “the exculpatory portion of a defendant's statement should be admitted if it is relevant to an issue in the case and necessary to clarify or explain the portion received.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington, 547 U.S. 813, 821 (2006) (citations omitted). However, “when multiple defendants are involved and statements have been redacted to avoid Bruton problems, the ‘rule of completeness' is ‘violated only when the statement in its edited form . . . effectively distorts the meaning of the statement or excludes information substantially exculpatory of the nontestifying defendant.'” United States v. Range, 94 F.3d 614, 621 (11th Cir. 1996) (quoting United States v. Lopez, 898 F.2d 1505, 1511 n.11 (11th Cir.1990)). In other words, the exclusion of a portion of a statement that may be admissible in a separate trial does not automatically violate the rule of completeness. See id.

         The exclusion of the redacted sentences here did not violate the rule for several reasons. First, it is not clear how the sentences that the court admitted directly relate to the excluded sentences. Roberson's statement that he talked to Gilbert and “wanted to know if it is a problem for him (Roberson) to be associated with the effort because he was a lobbyist” has no clear connection to Roberson's earlier statement regarding his “determin[ation] that the area targeted by the [advocacy] campaign was not in Robinson's district.” See docs. 266-2 at 7; 284 at 20. Although the omitted sentences may further explain Roberson's consideration of the legality of the Defendants' conduct in light of the ethics law, the redacted version of the interview summary did not distort the meaning of Roberson's statement to the FBI.

         Second, even if Roberson is correct that the redacted statement gave the jury the impression that he did not rely on any legal advice regarding the lawfulness of his conduct, doc. 266 at 25-26, the alleged error is harmless because other witnesses' testimony dispels that potential impression. Specifically, Mark Tracy, the CEO of Drummond Company, testified that Gilbert advised him, Roberson, and other Drummond executives at a meeting in late 2014 that Gilbert “had run [the hiring of Robinson's foundation] through [his firm's] legal department and their ethics department and that everything was fine.” Doc. 277 at 78-81. Gilbert also testified that he had indeed advised those present at the meeting that the contract with Robinson's foundation complied with the law and that he had vetted the contract with his partners who specialize in ethics law. Doc. 287 at 65-67. In light of this testimony, the redacted version of Roberson's interview with the FBI did not distort the meaning of Roberson's statement by giving the impression that Roberson assessed the legality of the engagement solely on his own.

         Third, the redacted statement did not severely prejudice Roberson's advice of counsel defense by, as Roberson contends, omitting the only direct evidence that he “turned to counsel for advice, which strongly implies that he relied on it, ” doc. 266 at 31. The advice of counsel defense required evidence that Roberson, “before acting: [1] made a full and complete good-faith report of all material facts to an attorney he considered competent; [2] received the attorney's advice as to the specific course of conduct that was followed; and [3] reasonably relied upon that advice in good faith.” Doc. 249 at 33 (emphasis added); see also United States v. Eisenstein, 731 F.2d 1540, 1543-44 (11th Cir. 1984). Here, however, the paragraph at issue begins with a statement that “[a]fter the Hubbard trial, Roberson considered what they were doing, i.e., contracting with [Robinson] in light of the ethics law . . . .” Doc. 266-2 at 7 (emphasis added). But, by June 2016 when the Hubbard trial ended, [3] the essential acts of the conspiracy had already transpired, including the execution of the contract with Robinson's foundation in February 2015, Robinson's meetings with the EPA and AEMC in December ...


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