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 . 00-0007 5-CR-8-T-3 0-TGW

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus AUDLEY EVANS, C. HAYWARD CHAPMAN, Defendants-Appe llants.

__________________________________ _______ Appeals from the United States District Court for the Middle Dist

rict of Florida

__________________________________ _______ (September 4 , 2003)

Before EDMONDSON, Chief Judge, DUBINA, Circui t Judge, and HODGES * , District Judge.1 We vacate Evans’s convictions on counts 120 and 121 based on the Government’s concession --

whichwe accept -- that insufficient evidence exists to support these convictions. We do n

ot 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 b

y insufficie

nt evidence and t

hat the objects of the conspiracy included bribery and gratuity, possibly violatin g Wharton’s Rule. Evans challenged his bribery

and g ratuity 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 charg

ed in the indictmen

t. Evans challeng

ed his false st

atem ent convictions (counts 122-124) claiming the Government offered insufficient

evidence to show that he made, directe

d, or aided and ab

etted false state

ments or that any

false statement w

as material. 2 EDMONDSON, Chief Judge: Audley Evans a

nd C. Haywa

rd Chapman we

re charged with 125counts of wire fraud, con

spiracy, brib ery, gratuity

, money la

undering, and m

aking false statements. F ollowing a jury trial, Evans wa

s convicted of one coun

t of conspiracy (co

unt 8), two counts of

bribery (count

s 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 f

our counts of gratuity

(counts 69-72). T

he district court grant

ed Evans’s post-t

rial motion for

judgment of ac

quittal on count 125. On appeal, a

ppellants challenge their convictions and s entence. We va cate Chapman’s con victions , Evans’s gra tuity convi ctions on counts 45 -48 and Eva ns’s false stateme

nt convictions on counts 12 0 and 121. 1 Discovering no other reversibl e error, we affi rm without di scussing the remainde r of Evans’s convictions. 23 We limit our discussion of the facts to those relevant to gratuity counts 45-48 and 69-72. 3 BACKGROUND 3

From 1988 through A

ugust 1996, Audley

Evans was the Exe

cutive Director of the Tampa H

ousing Authority (

The Authority

). After resi

gning as Executive Director, Evans was an unp aid consultant at the Authority until December 1 996. While an unpaid con

sultant for the Autho

rity, Evans be

came the Exe

cutive Director of the Meridian River Development Corp. (MRDC). The City of T

ampa create

d the Authority t

o develop and operate

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

the United States D

epartment of H

ousing and Urban Dev

elopment (HUD) to assist it in providing housing. A mong the HUD

funds received by

the Authority wer

e “Section 8” f

unds which were use

d by the Authority

to pay the rent of qualified fam

ilies who lived outside

of Authority-o

wned public housing. T

he Authority m

ade rent paym

ents for low incom

e families w

ho became clie

nts of the Authority and resided i n private housing

. MRDC is a non-prof

it corporation created at the directi on of the Authority to provide and dev elop affordable hou sing opportuni ties for low income person s. MRDC was crea

ted as an instrum

entality of the A

uthority for the

purpose of4

implement

ing the housing plans and pr ograms of the A

uthority. As a

private nonprofit corporation,

MRDC could perfor

m public housing fun

ctions that the Authority, as

a state agency

, could not. The A

uthority was the

sole membe

r of MRDC. MRDC owned and operated several residential properties. MRDC received Section 8 funds from the Au thority for eligible familie s who resided in MRDC properties. In 1996 and 1997, MRDC received more than $350,000.00 i n HUD funds. All of these

funds were paid by

the Authority to

MRDC to offset the

rent payments of

eligible low incom

e residents in MRDC

properties. MRD C’s excess funds were to be return ed to the Authority, or us ed as the Authority direct ed. In July 1996, Evans resig ned his Director’s posi tion at the Authori ty. Immediat ely thereafte

r, Evans becam

e the director of M

RDC. Beginning in September 1996, Evans awarded several MRDC contracts t o Concorde, Inc. Concorde wa s formed by C. Hayward Chapman and Te rri Keirn (Ch apman’s daughter). Concorde was controlled by Chapman. In Decem ber 1996, Chapman had Concorde post a $25 ,000 letter of cre dit as collateral to

allow Evans to take out a loan. In May

1997, Chapman ha

d Concorde pay $12 5,000.00 to three of Evans’s credito

rs. Although Evans

claims that Cha

pman paid these s

ums to purchase an intere st in Caribbean Pro perties (a com

pany owned by

Evans), Evans,5

after the time of Chapman’s pay ments, executed a financial affidavit stating that he and his wife owne

d 100% of Caribbean Properties. A grand jury

indicted Evans, Ch

apman, and Pa

trick Watson on 125 c

ounts of wire fraud, conspiracy, br ibery, unlaw

ful gratuities, m

oney laundering,

and false stat ements. The cas e proceeded to trial. At the close o f the Govern ment’s case, defendants moved for a judgment of acquittal. The district court granted Watson’s motion in its entirety, granted Evans’s m otion on 27 counts and granted Chapman’s m

otion on one count. The

district court rese

rved ruling on the remainder of the counts. The defense prese

nted evidence; Eva

ns and Chapman te stified. The ca se was then submitt

ed to the jury.The jury fo und Evans guilty on 15 counts: conspiracy to defraud the United States (count 8), bribery (counts 14 and 15), receipt of an illeg

al gratuity (co

unts 34, 35, and 45-48) , and making fa lse statements (c ounts 120-125). Chapm an was found guilty

of four counts of pay

ing an illegal gratuity

(counts 69-72). T

he district court la

ter granted Evans a judgment of ac

quittal on count 125 but de nied the motions f

or a judgment o f acquittal on the remaini ng counts. Evans was sentenced to 41 months on counts 8 , 14, 15, and 120-124 . He was sentenced to 24 m

onths on counts 34, 35, a nd 45-48. The sente

nces were to6

run concurrently . He was order ed to pay a $900.0 0 assessment and restitution of $209,249.38. Chapm

an was sentenced to

18 months and orde

red to pay a $350. 00 assessment and a $5,000.00 fine.

DISCUSSION

We review the denial of a moti on for judgmen

t 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 givin

g no deference to the district court’s deci sion. Id. We view all the evidence in the light m

ost favorable to the Governme

nt and draw[] a

ll reasonable infe

rences and credibi

lity choices in favor of th e jury's verdi ct. Keeping this stan dard in mind we turn to ap pellant’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. Eva

ns and Chapman c

hallenge the convicti

ons claiming Eva

ns was no public official, no

link existed betwee

n the gratuities and a

n official act, a

nd nothing evidenced the i

ntent to give or acce

pt an unlawful gratu

ity. Because Evans was not a publi c official (at MRDC), we vacate t hese convictions

.7

18 U.S.C. § 201(

c)(1) makes i

t illegal for any

one to give, offer

, or promise anything of value

to a public official

in return for any

official act per

formed or to be performed by that official. The statute also ma kes it illegal for a public official to receive anything of

value in re turn for an official ac t. Accordin g to the st atute’s words, a “publ

ic official” is a Member of Congress, Delegate, or Resident Comm issioner, either before or after such official has qua lified, or an offi

cer or employ

ee or person acting for or

on behalf of the Uni

ted States, or any

department, agency or branc

h of Governmen

t thereof, includin

g the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Go vernment, or a juror; . . . . 18 U.S.C. § 201(

a)(1). “T o determine w

hether any par

ticular individual [i s 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 (198 4). “To be a public

official under sec

tion 201(a), an indiv

idual must possess some degree of

official responsibi

lity for carr

ying out a feder

al program or policy.” Id. at 1181. The person need not be an employee of the federal government: the

definition of “p

ublic official” is b

road enough to cover pe

rsons working for private o rganizations. See United States v. Kenney , 185 F.3d 1217, 1222 (11th Cir. 1999) ( saying that em ployee of govern

ment contract

or who8

provided inform

ation and made r

ecommenda

tions that were re

lied on by government’s decision makers was public official). But the Suprem e Court has cautioned that the “

mere presenc e of some fede ral assistance” is

not enough to “bring[] a l

ocal organization a

nd its employ

ees within the jur

isdiction of the federal bribery statute . . . .” Dixson , 104 S.Ct. at 1181. The Governme

nt claims that E

vans was a public off

icial because he w

as a “person acting for or on b ehalf of the United Stat es.” They point out that MR DC was closely re

lated to the Authorit

y. MRDC wa

s the only nonprofi

t entity associate d with the Au thority. The A uthority se t MRDC up for the Author ity’s benefit. MRDC’ s excess funds were to be returned to the

Authority or spe

nt as the Authority directed. Two Auth ority board members sat on the boar d of MRDC. MRDC received a

substantial amou

nt of HUD Secti

on 8 funds from the

Authority for Authority clients residing in MRDC properties. The Government argues that these facts show tha

t Evans was “acting on behalf of a federal agency

, by the authority of a federal agency, and was responsible for carry ing out a federal program or policy.” The only feder

al program ide

ntified by the G

overnment is the

“Section 8” program. Un

der that program

, HUD make s annual contribution contracts with local public housing agencies, in this case the Authority, which the agencies can9

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

. 1437f(b)(1). The

record shows that M

RDC participate

d in this program as the owner of dwelling units. In this way, MRDC is no different from any other landlord renting to el

igible low incom

e tenants. MRDC

was a final reci

pient of federal funds. The final recipients of federal funds are usually not public officials under section 201(a)(1). Dixson , 104 S.Ct. at 118 2 (“[B]loc k grant recipients a

nd business people who pr

ovide recipients wi

th goods and services c annot 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 fr om other landlords because of

its relationship wit

h the Authority a

nd that this relationsh

ip makes Evans a public offici al. In the light of the record in this case, we di sagree. The relationship between MRDC and the Authority cannot by itself make an MRDC employ

ee a public officia

l. In fact, not e

very emplo

yee of the Auth

ority is a public official. Dixson , 104 S.Ct. at 1181 (“[W]e do not m ean to suggest . . . that all employe

es of local organiza

tions responsible for

administering f

ederal 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 evidence4 The gratuity payments at issue oc curred while Ev ans was the dire ctor of MRDC. The f irst payment may have occurred while Evans was still an unpaid consultant for the Autho r ity, but the record is not clear on this point. The record indicates that the first gratuity, the letter of credit, was gi venon 23 Dec. 1996 when Evans was an unpaid consultant and that Evans was an unpai d consultant

“until” December

1996. Although the

indictment alleg

es that Evans rema

ined an unpaid consultant

until 30 Dec. 1996, the evidenc e in the record do

es not indicate

the date that Evan

s quit consulting for the Authority. Assuming Evans was an un paid consu

ltant for the Authority on 23 Dec. 1996, his position did no t ma ke 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 inthe record indicates that Evans (as a consultant) exercised authori t y for carrying

out a federal program. The record evidences nothing about Evans’s duties -- if any -- as an unpaid consultant to the Aut hor ity. 5 We do not say that the

director of an or

ganization like MRD

C can never be a

public official. If evidence showed Evans influenced the Authority ’s decisions involv ing the Federa

l Low Inco

me Housing program, he could be a public official. See United States v. Hang , 75 F.3d 1275, 1280-81 (8th Cir. 1996 )(Eligibil ity technic ian for the Minnea

polis Public Housing

Authority wa

s 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 cou rt should have granted Chapman’s motion to sever his trial and Chapman’s motion for a mistrial. 10 does not show and the G

overnment does no

t really argue

that Evans possessed this kind of official resp onsibility. Because Evan s while at MRDC 4 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 convicti ons on Counts 45-48 and Chapman’s c onvictions on counts 69-72 are vacated. 6

CONCLUSION11

Because Evans wa

s not a public officia

l while at MRDC w

e VACATE his convicti ons on cou nts 45-48 and Chapman’s convicti ons on cou nts 69-72 . We also VACATE Evans’s convictio n on counts 120 and 121. W e AFFIRM the remainder of Evans’s convictions and REMAND with instructions to enter a judgment of ac

quittal for Chapm

an and to re-sentenc e Evans. AFFIRMED IN PART, VACATED IN PART, and REMANDED.