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Bribery conviction upheld while last minute defense rejected

Defendant Whitman started a trucking company called United Logistics. To increase business and profits he bribed three employees of the federal Defense Logistics Agency to steer transportation contracts his way.  Whitman was convicted of federal crimes including bribery, wire fraud, and obstruction involving government contracts and took this appeal.

The evidence at trial showed that for about four years Whitman’ scheme defrauded the United States of more than $15 million by bribing three employees of the Defense Logistics Agency on a Marine Corps base to use his trucking company to ship military equipment around the country.

Because the Department of Defense hired an outside company to book shipment carriers, the four schemers devised shipment requirements that all but guaranteed that United would receive assignments. Yet Whitman rarely if ever satisfied the special requirements the Defense Logistics Agency imposed. Furthermore, Whitman’s company only owned two trucks and his assistant would have to hire other trucking companies to handle the shipments he contracted with the Defense Department.

Although the Defense Logistics Agency employees never discussed with each other the specifics of their individual arrangements with Whitman, they knew about the criminal conduct of their coconspirators. Whitman told the others that McCarty was working for him and that he was paying McCarty to get him as many loads as possible. One of the coconspirators was McCarty’s supervisor and he frequently reviewed McCarty’s work and had identified fraudulent activity without taking any corrective measures.

The coconspirators met with each other several times as the investigation into their activities increased to find out what the others knew about the investigation. At his trial Whitman’s defense was that he was extorted money by the coconspirators because they threatened to blackball him and eliminate him as a carrier. In his closing, he argued that Whitman was the victim of extortion by two clearly corrupt government officials and he had to pay to keep doing business.

At the jury charge conference Whitman’s counsel raised a defense theory for the first time during the trial. He claimed that Whitman gave illegal gratuities to the government employees, not bribes and asked for an instruction to that effect. The district court decided not to give the instruction.

The appeals court upheld the trial court’s decision not to give the instruction. At his federal criminal trial Whitman argued that he was the victim of extortion and as a result lacked the intent to support a bribery conviction. But economic coercion is a complete defense both to bribery and to giving illegal gratuities. Therefor the evidence at trial would not have permitted the jury to acquit him of bribery and convict him of giving illegal gratuities.

The codefendant argues that the district court erred when it calculated his sentencing guidelines range using the total loss amount caused by all four schemers. He claimed that the actions of the other government employees were taken independently and were not the product o any criminal agreement. The court rejected this argument because the sentencing guidelines permit a trial court to hold participants in a jointly undertaken responsible for the acts and omissions of others. The court found that McCarty agreed to participate in a jointly undertaken criminal scheme. Therefore, the district court did not clearly err when if held McCarty responsible for all losses caused by jointly undertaken criminal activity.

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