FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 04 2003

THOMAS K. KAHN

CLERK

 

*

Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida,

sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 01-15156

_____________________________

D. C. Docket No. 00-00075-CR-8-T-30-TGW 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AUDLEY EVANS,

C. HAYWARD CHAPMAN,

Defendants-Appellants.

_________________________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________________________

(September 4, 2003)

Before EDMONDSON, Chief Judge, DUBINA, Circuit Judge, and HODGES*

,

District Judge. 
 

1We vacate Evans’s convictions on counts 120 and 121 based on the Government’s concession --

which we accept -- that insufficient evidence exists to support these convictions. We do not discuss

them further. 

 

2

 Briefly stated, Evans challenged his conspiracy conviction (count 8) claiming that some of the

allegations and overt acts in the count were supported by insufficient evidence and that the objects

of the conspiracy included bribery and gratuity, possiblyviolating Wharton’s Rule. Evans challenged

his bribery and gratuity convictions (counts 14, 15, 34, and 35) claiming there was insufficient

evidence (1) of a quid pro quo, (2) of an official act linked to the bribe, and (3) that Bill Williams

was the giver of the bribe as charged in the indictment. Evans challenged his false statement

convictions (counts 122-124) claiming the Government offered insufficient evidence to show that

he made, directed, or aided and abetted false statements or that any false statement was material.

2

EDMONDSON, Chief Judge:

Audley Evans and C. Hayward Chapman were charged with 125 counts of

wire fraud, conspiracy, bribery, gratuity, money laundering, and making false

statements. Following a jury trial, Evans was convicted of one count of

conspiracy (count 8), two counts of bribery (counts 14 and 15), six counts of

gratuity (counts 34, 35, and 45-48), and six counts of false statements (counts 120-

125). Chapman was convicted of four counts of gratuity (counts 69-72). The

district court granted Evans’s post-trial motion for judgment of acquittal on count

125. On appeal, appellants challenge their convictions and sentence. We vacate

Chapman’s convictions, Evans’s gratuity convictions on counts 45-48 and Evans’s

false statement convictions on counts 120 and 121.1

 Discovering no other

reversible error, we affirm without discussing the remainder of Evans’s

convictions.2

 
 

3

 We limit our discussion of the facts to those relevant to gratuity counts 45-48 and 69-72. 

3

BACKGROUND3

From 1988 through August 1996, Audley Evans was the Executive Director

of the Tampa Housing Authority (The Authority). After resigning as Executive

Director, Evans was an unpaid consultant at the Authority until December 1996. 

While an unpaid consultant for the Authority, Evans became the Executive

Director of the Meridian River Development Corp. (MRDC). 

The City of Tampa created the Authority to develop and operate public

housing units for eligible families. The Authority received millions of dollars

annually from the United States Department of Housing and Urban Development

(HUD) to assist it in providing housing. Among the HUD funds received by the

Authority were “Section 8” funds which were used by the Authority to pay the rent

of qualified families who lived outside of Authority-owned public housing. The

Authority made rent payments for low income families who became clients of the

Authority and resided in private housing. 

MRDC is a non-profit corporation created at the direction of the Authority

to provide and develop affordable housing opportunities for low income persons. 

MRDC was created as an instrumentality of the Authority for the purpose of
4

implementing the housing plans and programs of the Authority. As a private nonprofit corporation, MRDC could perform public housing functions that the

Authority, as a state agency, could not. The Authority was the sole member of

MRDC. 

MRDC owned and operated several residential properties. MRDC received

Section 8 funds from the Authority for eligible families who resided in MRDC

properties. In 1996 and 1997, MRDC received more than $350,000.00 in HUD

funds. All of these funds were paid by the Authority to MRDC to offset the rent

payments of eligible low income residents in MRDC properties. MRDC’s excess

funds were to be returned to the Authority, or used as the Authority directed. 

In July 1996, Evans resigned his Director’s position at the Authority. 

Immediately thereafter, Evans became the director of MRDC. Beginning in

September 1996, Evans awarded several MRDC contracts to Concorde, Inc. 

Concorde was formed by C. Hayward Chapman and Terri Keirn (Chapman’s

daughter). Concorde was controlled by Chapman. In December 1996, Chapman

had Concorde post a $25,000 letter of credit as collateral to allow Evans to take

out a loan. In May 1997, Chapman had Concorde pay $125,000.00 to three of

Evans’s creditors. Although Evans claims that Chapman paid these sums to

purchase an interest in Caribbean Properties (a company owned by Evans), Evans,
5

after the time of Chapman’s payments, executed a financial affidavit stating that

he and his wife owned 100% of Caribbean Properties.

 A grand jury indicted Evans, Chapman, and Patrick Watson on 125 counts

of wire fraud, conspiracy, bribery, unlawful gratuities, money laundering, and

false statements. The case proceeded to trial. At the close of the Government’s

case, defendants moved for a judgment of acquittal. The district court granted

Watson’s motion in its entirety, granted Evans’s motion on 27 counts and granted

Chapman’s motion on one count. The district court reserved ruling on the

remainder of the counts. 

The defense presented evidence; Evans and Chapman testified. The case

was then submitted to the jury. The jury found Evans guilty on 15 counts:

conspiracy to defraud the United States (count 8), bribery (counts 14 and 15),

receipt of an illegal gratuity (counts 34, 35, and 45-48), and making false

statements (counts 120-125). Chapman was found guilty of four counts of paying

an illegal gratuity (counts 69-72). The district court later granted Evans a

judgment of acquittal on count 125 but denied the motions for a judgment of

acquittal on the remaining counts. 

Evans was sentenced to 41 months on counts 8, 14, 15, and 120-124. He

was sentenced to 24 months on counts 34, 35, and 45-48. The sentences were to
6

run concurrently. He was ordered to pay a $900.00 assessment and restitution of

$209,249.38. Chapman was sentenced to 18 months and ordered to pay a $350.00

assessment and a $5,000.00 fine.

 

DISCUSSION

We review the denial of a motion for judgment of acquittal de novo. United

States v. Grigsby, 111 F.3d 806, 833 (11th Cir. 1997). We conduct an

independent review of the sufficiency of the evidence giving no deference to the

district court’s decision. Id. We view all the evidence in the light most favorable

to the Government and draw[] all reasonable inferences and credibility choices in

favor of the jury's verdict. Keeping this standard in mind we turn to appellant’s

arguments. 

Counts 45-48 and 69-72 charged that Chapman, through Concorde, had

given and Evans had received gratuities because of official acts to be performed

by Evans. Evans and Chapman challenge the convictions claiming Evans was no

public official, no link existed between the gratuities and an official act, and

nothing evidenced the intent to give or accept an unlawful gratuity. Because

Evans was not a public official (at MRDC), we vacate these convictions. 
7

18 U.S.C. § 201(c)(1) makes it illegal for anyone to give, offer, or promise

anything of value to a public official in return for any official act performed or to

be performed by that official. The statute also makes it illegal for a public official

to receive anything of value in return for an official act. According to the statute’s

words, a “public official” is a

Member of Congress, Delegate, or Resident Commissioner, either

before or after such official has qualified, or an officer or employee or

person acting for or on behalf of the United States, or any department,

agency or branch of Government thereof, including the District of

Columbia, in any official function, under or by authority of any such

department, agency, or branch of Government, or a juror; . . . . 

18 U.S.C. § 201(a)(1). “To determine whether any particular individual [is a

public official], the proper inquiry is . . . whether the person occupies a position of

public trust with official federal responsibilities.” Dixson v. United States, 104

S.Ct. 1172, 1180 (1984). 

“To be a public official under section 201(a), an individual must possess

some degree of official responsibility for carrying out a federal program or

policy.” Id. at 1181. The person need not be an employee of the federal

government: the definition of “public official” is broad enough to cover persons

working for private organizations. See United States v. Kenney, 185 F.3d 1217,

1222 (11th Cir. 1999) (saying that employee of government contractor who
8

provided information and made recommendations that were relied on by

government’s decision makers was public official). But the Supreme Court has

cautioned that the “mere presence of some federal assistance” is not enough to

“bring[] a local organization and its employees within the jurisdiction of the

federal bribery statute . . . .” Dixson, 104 S.Ct. at 1181. 

The Government claims that Evans was a public official because he was a

“person acting for or on behalf of the United States.” They point out that MRDC

was closely related to the Authority. MRDC was the only nonprofit entity

associated with the Authority. The Authority set MRDC up for the Authority’s

benefit. MRDC’s excess funds were to be returned to the Authority or spent as the

Authority directed. Two Authority board members sat on the board of MRDC. 

MRDC received a substantial amount of HUD Section 8 funds from the Authority

for Authority clients residing in MRDC properties. The Government argues that

these facts show that Evans was “acting on behalf of a federal agency, by the

authority of a federal agency, and was responsible for carrying out a federal

program or policy.”

 The only federal program identified by the Government is the “Section 8”

program. Under that program, HUD makes annual contribution contracts with

local public housing agencies, in this case the Authority, which the agencies can
9

use to make rental payments to the owners of dwelling units. 42 U.S.C.

1437f(b)(1). The record shows that MRDC participated in this program as the

owner of dwelling units. In this way, MRDC is no different from any other

landlord renting to eligible low income tenants. MRDC was a final recipient of

federal funds. 

The final recipients of federal funds are usually not public officials under

section 201(a)(1). Dixson, 104 S.Ct. at 1182 (“[B]lock grant recipients and

business people who provide recipients with goods and services cannot be said to

be public officials under section 201(a) unless they assume some duties of an

official nature.”). The Government argues that MRDC differs from other

landlords because of its relationship with the Authority and that this relationship

makes Evans a public official. In the light of the record in this case, we disagree. 

The relationship between MRDC and the Authority cannot by itself make an

MRDC employee a public official. In fact, not every employee of the Authority is

a public official. Dixson, 104 S.Ct. at 1181 (“[W]e do not mean to suggest . . . that

all employees of local organizations responsible for administering federal grant

programs are public officials within the meaning of section 201(a).”). “To be a

public official . . . an individual must possess some degree of official

responsibility for carrying out a federal program or policy.” Id. The evidence
 

4

 The gratuity payments at issue occurred while Evans was the director of MRDC. The first

payment may have occurred while Evans was still an unpaid consultant for the Authority, but the

record is not clear on this point. The record indicates that the first gratuity, the letter of credit, was

given on 23 Dec. 1996 when Evans was an unpaid consultant and that Evans was an unpaid

consultant “until” December 1996. Although the indictment alleges that Evans remained an unpaid

consultant until 30 Dec. 1996, the evidence in the record does not indicate the date that Evans quit

consulting for the Authority. Assuming Evans was an unpaid consultant for the Authority on 23

Dec. 1996, his position did not make him a public official. The Government does not argue that

Evans’s position as an unpaid consultant made him a public official for this gratuity and no evidence

in the record indicates that Evans (as a consultant) exercised authority for carrying out a federal

program. The record evidences nothing about Evans’s duties -- if any -- as an unpaid consultant to

the Authority.

 

5

 We do not say that the director of an organization like MRDC can never be a public official.

If evidence showed Evans influenced the Authority’s decisions involving the Federal Low Income

Housing program, he could be a public official. See United States v. Hang, 75 F.3d 1275, 1280-81

(8th Cir. 1996)(Eligibility technician for the Minneapolis Public Housing Authority was public

official because he “had primary authority for determining who would be the beneficiaries of federal

funds.”); Kenney, 185 F.3d at 1222. 

 

6

 Because we vacate Chapman’s convictions, we do not consider whether the district court

should have granted Chapman’s motion to sever his trial and Chapman’s motion for a mistrial. 

10

does not show and the Government does not really argue that Evans possessed this

kind of official responsibility. Because Evans while at MRDC4 did not have

authority for carrying out a federal program or policy, he was not a public official

as defined by section 201(a)(1).5

 Evans’s convictions on Counts 45-48 and

Chapman’s convictions on counts 69-72 are vacated.6

 

CONCLUSION
11

Because Evans was not a public official while at MRDC we VACATE his

convictions on counts 45-48 and Chapman’s convictions on counts 69-72. We

also VACATE Evans’s conviction on counts 120 and 121. We AFFIRM the

remainder of Evans’s convictions and REMAND with instructions to enter a

judgment of acquittal for Chapman and to re-sentence Evans.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.