In U.S. v. White, former Commissioner White of Jefferson County, Alabama, was convicted of the federal crime of conspiracy to take a bribe in connection with federal funds. White was also convicted of the substantive federal crime of bribery in violation of 18 U.S.C. § 666. In writing the opinion, Judge Carnes had this comment about the overall integrity of the Jefferson County Commissioners.
‘Kleptocracy’ is a term used to describe ‘a government characterized by rampant greed and corruption.” [Citing the American Heritage Dictionary of the English Language] To that definition dictionaries might add, as a helpful illustration: ‘See, for example, Alabama’s Jefferson County Commission in the period from 1998 to 2008.’ During those years, five members or former members of the commission that governs Alabama’s most populous county committed crimes involving their ‘service’ in office for which they were later convicted in federal court. And the commission has only five members. One of those five former commissioners who was convicted did not appeal. We have affirmed the convictions of three others who did. This is the appeal of the fifth one.
First, some background. Jefferson County Alabama had entered into an agreement with the U.S. Environmental Protection Agency following a lawsuit against the county for untreated sewage released into the county’s rivers and streams. The agreement required the county to fix its sewer system at the cost of $3 billion. The county hired engineering firms to do the repair and renovation work. One of Whites responsibilities as Jefferson County Commissioner was to oversee the hiring of the engineering firms that contracted with the county to perform the sewer construction work. One of those engineering firms won lucrative contracts with the county because the firm’s owner bribed White. In exchange for the contracts totaling $1 million, White collected $22,000 in cash from its owner.
Evidence of Corrupt Intent found by White’s accepting money from the contractor
To prove White violated 18 U.S.C. § 666, the government had to prove:
1) He accepted the cash from the contractor; and
2) He did so with corrupt intent to be influenced or rewarded in connection with the contractor with the county.
The court rejected White’s claim there was insufficient evidence to prove White accepted cash with corrupt intent. The 11th Circuit found there was evidence he accepted cash from the engineering company with “corrupt intent” to be influenced regarding the engineering contracts with Jefferson County. He was paid the $22,000 during the period that the engineering firm entered into 48 new contracts with Jefferson County. White was the commissioner in charge of the county department that selected the engineering firm for those contracts and negotiated the terms and price. He had the authority to approve each contract before its submission to the full commission. The same evidence also supported the conspiracy conviction.
Sentencing enhancements upheld because the benefit was in excess of $1 million
White’s sentencing guidelines were calculated to be 188 – 235 months. White challenged a 16 level guidelines enhancement imposed because the benefit received “in return for” the bribe exceeded $1 million (in this case the contracts exceeded $1 million. White argued that the county would have entered into contracts with the engineering firm regardless of the cash payments. The 11th Circuit disagreed with White, noting that other federal circuits require only a causal connection between the bribes and the benefit received. Here, there was a preponderance of evidence showing the contractor paid White to ensure he would not lose the county business.
Finally the 11th Circuit held that there was no double counting where his offense level increased under to subsections of under USSG §2C1.1 because he was a public official and an elected public official. The 11th Circuit noted a distinction. Double counting it said occurs where one part of the guidelines is applied to increase a defendant’s sentence on account of a harm that has already been fully accounted for by application of another part of the guidelines. Here bribe taking as an elected public official is different from being a “run-of-the mill, bribe-taking, nonelected public official.” White was being punished for taking a bribe as an elected public official.