[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-14846

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D.C. Docket No. 1:14-cr-00001-WLS-TQL-1

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

CHRISTOPHER WHITMAN,

SHAWN MCCARTY,

 Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Middle District of Georgia

_______________________

(April 24, 2018)

Before WILLIAM PRYOR and JULIE CARNES, Circuit Judges, and ANTOON,*

District Judge.

WILLIAM PRYOR, Circuit Judge: 

 * Honorable John Antoon II, United States District Judge for the Middle District of Florida, 

sitting by designation.

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This appeal from convictions of bribery, wire fraud, theft, and obstruction 

involving government contracts presents two questions: (1) whether the district 

court abused its discretion when it declined to instruct the jury about the offense of 

giving illegal gratuities as a lesser-included offense of bribery; and (2) whether the 

district court clearly erred when it determined that one of the defendants was 

responsible for the entire loss amount attributable to the criminal scheme. 

Christopher Whitman, the owner of a trucking company, United Logistics, bribed 

Shawn McCarty and two other employees of the federal Defense Logistics Agency 

to steer transportation contracts to and increase the profits of United Logistics. 

Whitman and McCarty were convicted and sentenced for their roles in committing 

multiple crimes, including wire fraud and bribery. Whitman argues that the district 

court abused its discretion when it refused to instruct the jury about giving illegal 

gratuities as a lesser-included offense of bribery. But the district court did not 

abuse its discretion because the trial involved no dispute that would have allowed 

the jury to convict Whitman of the lesser charge while acquitting him of bribery. 

Whitman argued at trial an exculpatory defense that, if believed, would have 

required the jury to acquit him of both charges. McCarty argues that the district 

court erred when it calculated his Sentencing Guidelines range using the total loss 

amount caused by all four schemers. But a defendant may be held responsible for 

all losses caused by a jointly undertaken criminal activity, and the district court did 

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not clearly err when it inferred that McCarty agreed to join a scheme involving 

Whitman and the other two government employees. We affirm Whitman’s 

conviction and McCarty’s sentence. 

I. BACKGROUND

For about four years, Christopher Whitman orchestrated a scheme that 

defrauded the United States of more than $15 million. In 2008, Whitman founded a 

trucking company called United Logistics, and he later bribed three employees of

the Defense Logistics Agency on a Marine Corps base to use his trucking company 

to ship military equipment around the country. Whitman bribed Mitch Potts, the 

office supervisor, Jeffrey Philpot, a transportation assistant, and Shawn McCarty, 

another transportation assistant. 

Because the Department of Defense hired an outside company, Menlo, to 

book shipment carriers, the four schemers devised shipment requirements that all 

but guaranteed that United Logistics would receive assignments. For example, 

Philpot delayed making requests and required same-day pickups to force Menlo 

representatives to assign the shipments to a local carrier. A Menlo representative 

testified that one request gave the company a lead time of ten minutes, “which is 

virtually impossible” to honor. Philpot also required the use of certain trailers

because United Logistics had more of those trailers than any other carrier. He 

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testified that he “couldn’t guarantee the business would go [to United Logistics], 

but it was, you know, most likely.” 

Yet Whitman rarely, if ever, satisfied the special requirements the 

employees imposed. Although Whitman instructed his assistant to accept every 

request from Menlo, United Logistics owned only two trucks. Whitman would 

regularly send one of the two trucks to pick up the shipments and transport them 

back to his yard. His assistant would then hire other trucking companies to handle 

the shipments without complying with any expedite, special-equipment, or other 

restrictive requests. 

The four schemers also used tactics to boost the profits of United Logistics. 

Philpot explained that he “short load[ed]” trucks by “[b]reaking . . . shipment[s] 

down into . . . smaller shipment[s]” so that the government was forced to “order 

more trucks than w[ere] actually required.” Whitman then reloaded the shipments 

into fewer trucks once he got them back to his yard and billed the government for 

more trucks than he actually used. The evidence also established that McCarty 

once contracted with United Logistics to ship a single pallet of elastic cord from 

Albany, New York, to Canada for a total cost of more than $12,000. Because the 

shipment was designated “exclusive use,” no other cargo could accompany the 

pallet even though it filled only about one-fiftieth of the space in a single trailer. 

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In exchange for steering profitable contracts to United Logistics, Whitman 

paid the government employees in cash and goods. For example, Whitman paid 

Potts $5,000 to $6,000 in cash-filled envelopes “monthly as long as [they] were 

doing good work,” gave him gift cards to restaurants, and bought a house from 

him. Whitman initially paid Philpot “[a]nywhere from $1,000 up to $5,000” in 

cash “[a]t least two or three times a week,” and later wrote checks for “items 

[Philpot] wanted” because that was “more convenient for him.” He also paid a 

construction company owned by McCarty to make improvements to Philpot’s 

home. And Whitman bought McCarty multiple cars, let McCarty live in one of his 

houses rent-free for a year and a half, and treated McCarty and Philpot to a 

bachelor party where he gave each of them money to gamble. 

Although the employees never discussed with each other the specifics of 

their individual arrangements with Whitman, they knew about the criminal conduct 

of their colleagues. Whitman told Potts that he “had [McCarty] working for him” 

and that he was “paying him to get [him] as many loads as possible.” Because 

Philpot was McCarty’s supervisor, he frequently reviewed McCarty’s work and

identified fraudulent activity, like short loading, but failed to take any corrective 

action. Philpot testified that he “figured [McCarty] was doing pretty much the 

same thing [he] was doing” and that “[he] did not want to get him in trouble, and 

[he] didn’t want [him]self to get in trouble either.” 

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In 2012, agents from the Naval Criminal Investigative Service informed 

Potts and Philpot that they were under criminal investigation because of their 

relationship with Whitman. The two employees left the military base to meet with 

each other, and Philpot called McCarty “to give him a heads up.” Whitman later

joined the meeting and told Philpot and Potts to “make sure [their] phones [we]re 

clear.” 

McCarty, Potts, and Philpot met with each other several times as the 

investigation progressed to “touch base, [to] see if anybody had heard anything, 

[and to] try to find out what was going on.” At one meeting, Philpot told McCarty 

that he was planning to meet with investigators to discuss his role in the scheme. 

McCarty responded that “all they had on him was a four-wheeler and a Mustang, 

and he wasn’t going to prison for that.” At another meeting, Whitman advised 

Potts and Philpot, “[T]he fish that don’t open his mouth don’t get hooked.” 

Unpersuaded, Potts and Philpot agreed to cooperate with the government.

At trial, Whitman defended himself by arguing that he was extorted. He 

contended that “[t]he money he paid was paid because [Potts and Philpot] 

threatened to blackball him and to eliminate him as a carrier.” In his opening 

statement, Whitman’s counsel stated, “[Whitman] didn’t have a corrupt intent to 

bribe. And that is [his] defense.” When he cross-examined Philpot, counsel asked 

if he told investigators that he “threatened Whitman that [he] would turn him off.” 

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During his examination of an agent who interviewed Philpot, he asked whether 

Philpot “disclose[d] that there were instances when Whitman was a little slow in 

compensating him,” that Philpot “would need to remind Whitman to pay him,” and 

that he “threatened Whitman that he would, quote, turn him off if Whitman did not 

continue paying him.” And in his closing argument, counsel reiterated that it was 

his “position” that “Whitman [wa]s the victim of extortion by two clearly corrupt 

government officials.” He stated that “Whitman had to pay to keep doing business” 

and that “the government ha[d] not carried its burden of showing beyond a 

reasonable doubt by trustworthy evidence that the[] payments were not the result 

of extortion.” 

Whitman’s proposed jury instructions also reflected his defense of extortion. 

Whitman’s counsel requested that the district court instruct the jury about the 

definition of “corruptly” and the defense of economic coercion. For example, he 

asked that the district court stress that “the defendant would not be guilty of the 

offense of bribery if he paid money to the federal official, but did so as a result of 

coercion, and not with a corrupt motive.” 

At the charge conference, Whitman’s counsel raised—for the first time—the 

possibility of a new theory of defense: that he gave illegal gratuities, not bribes, to 

the government employees. Whitman’s counsel stated, “Your Honor, I have 

another matter that I just didn’t snap to. The Defendant Whitman would request the 

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lesser-included offense charge of gratuity.” Counsel argued that instead of 

convicting Whitman of bribery, the jury “could find that there was not a specific 

purpose or—we just talked about specific purpose ‘for this, for those,’ and all of 

that. They could find it wasn’t for that. It was just a payment.” The government 

and two of Whitman’s co-defendants, including McCarty, opposed the request, and 

after a short recess to consider the argument, the district court decided not to give

the instruction. It stated that “there is little, if any evidence in the record of 

payments being made as gratuit[ies].” And because the jury would be asked “to 

deliberate on a matter that[] [is] not really clearly in the case,” the instruction 

“would be more confusing than it would be of aid[] [to] the jury in its 

deliberation.” 

The jury convicted Whitman of 43 counts of wire fraud, five counts of 

bribery, one count of theft of government property, four counts of obstruction of 

justice, and one count of obstructive destruction of records. And the district court 

sentenced him to 264 months of imprisonment, restitution totaling $18,860,313.75, 

a $5,400 assessment, and three years of supervised release. 

The jury convicted McCarty of 15 counts of wire fraud, one count of 

bribery, and one count of obstruction of justice. At his sentencing, the district court 

calculated his Sentencing Guidelines range using the loss amount caused by all 

four schemers. It stated that “[a] loss amount as to Defendant McCarty of 

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$17,543,430.45 in the [district] [c]ourt’s opinion [wa]s supported by a 

preponderance of the evidence.” It acknowledged McCarty’s argument that he was 

personally responsible for a far smaller loss amount, but it explained that “under a 

reasonable interpretation of the charges as . . . argued by the government and as the 

jury considered,” he was “involve[d] in a scheme, and th[e] scheme center[ed] 

around the Defendant Whitman.” It ruled that McCarty was “accountable” for the 

conduct of other participants in the scheme, even though the government did not 

charge a conspiracy and he was “not specifically and discretely found guilty . . . by 

the jury” of the other schemers’ conduct. The district court sentenced him to 120 

months of imprisonment, restitution totaling $15,410,151.55, a $1,700 assessment, 

and three years of supervised release. 

II. STANDARD OF REVIEW

Two standards govern our review of this appeal. We review a decision not to 

give a requested instruction for abuse of discretion. United States v. Gutierrez, 745 

F.3d 463, 470 (11th Cir. 2014). “[W]e will leave undisturbed a district court’s 

ruling unless we find that the district court has made a clear error of judgment, or 

has applied the wrong legal standard.” Arthur v. Thomas, 739 F.3d 611, 628 (11th 

Cir. 2014) (quoting Ameritas Variable Life Ins. v. Roach, 411 F.3d 1328, 1330 

(11th Cir. 2005)). And we review a finding of amount of loss for clear error. See 

United States v. Siegelman, 786 F.3d 1322, 1333 (11th Cir. 2015). We must affirm 

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the finding if it is “plausible in light of the record viewed in its entirety.” Id.

(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)).

III. DISCUSSION

We divide our discussion in two parts. First, we explain that the district court 

did not abuse its discretion when it refused Whitman’s last-minute request to 

instruct the jury about paying illegal gratuities because Whitman argued an 

exculpatory defense that, if believed, would have required the jury to acquit him of 

both bribery and giving illegal gratuities. Second, we explain that the district court 

did not clearly err when it calculated McCarty’s loss amount. 

A. The District Court Did Not Abuse Its Discretion when It Refused To Give 

a Lesser-Included-Offense Instruction on Giving Illegal Gratuities.

Whitman argues that the district court erred when it refused to instruct the 

jury about giving illegal gratuities as a lesser-included offense of bribery. Federal 

Rule of Criminal Procedure 31(c) provides that “[a] defendant may be found guilty 

of . . . an offense necessarily included in the offense charged.” Although providing 

an instruction on a lesser-included offense often aids the prosecution in obtaining a 

conviction on, at least, one charge, “it is now firmly established that Rule 31(c)’s 

provision for lesser offense instructions benefits the defendant as well.” Schmuck v. 

United States, 489 U.S. 705, 717 n.9 (1989). It “protects the defendant” because 

“where the jury suspects that the defendant is plainly guilty of some offense, but 

one of the elements of the charged offense remains in doubt, . . . the jury will likely 

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fail to give full effect to the reasonable-doubt standard” and “resolv[e] its doubts in

favor of conviction” if the district court does not give the instruction. Id. 

To establish that the district court abused its discretion, Whitman must 

satisfy a two-part test. United States v. Williams, 197 F.3d 1091, 1095 (11th Cir. 

1999). “First, he must show that the charged offense encompasses all of the 

elements of the lesser offense (the ‘elements’ test).” Id. “Second, he must establish 

that the district court abused its discretion in failing to give the instruction” 

because “the evidence would permit the jury rationally to acquit the defendant of 

the greater, charged offense and convict him of the lesser.” Id.; see also Carter v. 

United States, 530 U.S. 255, 261 n.3 (2000). We have explained that “[a]bsent any 

evidence to support the bare assertion of [a defendant’s] lawyer” that the 

government failed to prove an element of the greater offense, “the trial court [i]s 

not required to instruct the jury about lesser included offenses.” United States v. 

Tisdale, 817 F.2d 1552, 1554 (11th Cir. 1987); see also Gutierrez, 745 F.3d at 470.

The only element necessary to prove the greater offense of official-act 

bribery but not necessary to prove the lesser-included offense of giving illegal 

gratuities is the existence of a “quid pro quo—a specific intent to give or receive 

something of value in exchange for an official act.” United States v. Sun-Diamond 

Growers of Cal., 526 U.S. 398, 404–05 (1999). Official-act bribery prohibits

“directly or indirectly, corruptly giv[ing], offer[ing] or promis[ing] anything of 

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value to any public official or person who has been selected to be a public 

official . . . with intent . . . to influence any official act.” 18 U.S.C. § 201(b) 

(emphasis added). In contrast, the gratuities provision prohibits “directly or 

indirectly giv[ing], offer[ing], or promis[ing] anything of value to any [past, 

present, or future] public official, for or because of any official act performed or to 

be performed by such [official].” 18 U.S.C. § 201(c) (emphasis added). 

The two statutory provisions contain distinct intent elements. See SunDiamond, 526 U.S. at 404–05. Official-act bribery requires the “intent ‘to 

influence’ an official act,” which means that there must be a “quid pro quo,” or “a 

specific intent to give or receive something of value in exchange for an official 

act.” Id. at 404–05. But giving illegal gratuities “requires only that the gratuity be 

given or accepted ‘for or because of’ an official act.” Id. at 404. So “[a]n illegal 

gratuity . . . may constitute merely a reward” for some future or past act by the 

official. Id. at 405.

We need not decide whether giving illegal gratuities is a lesser-included 

offense of bribery. At least one circuit has held, over dissent, that it is. United 

States v. Alfisi, 308 F.3d 144, 152 & n.6 (2d Cir. 2002); see also id. at 158–61 

(Sack, J., dissenting). The government argues that we should adopt the reasoning 

of the dissent in that decision and hold that, although giving illegal gratuities is a 

subset of official-act bribery, it is not a lesser-included offense of all three of the 

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alternative forms of bribery, 18 U.S.C. § 201(b). We need not resolve that issue of 

first impression in this Circuit because Whitman has not established that the 

evidence at trial would have permitted the jury to acquit him of bribery and convict 

him of giving illegal gratuities. 

Whitman argued at trial that he was the victim of extortion and, as a result,

lacked the intent necessary to support a bribery conviction, but “[w]hen a 

defendant relies on an exculpatory defense that, if believed, would lead to 

acquittals on both the greater and lesser charges, it is no abuse of discretion to 

refuse to instruct the jury on a lesser included offense.” United States v. Brown, 26 

F.3d 119, 120 (11th Cir. 1994). The parties do not dispute for the purpose of this

appeal that economic coercion is a complete defense both to bribery and to giving 

illegal gratuities, and the district court instructed the jury that economic coercion 

was a complete defense to the charge of bribery. But see United States v. 

Colacurcio, 659 F.2d 684, 690 (5th Cir. Unit A Oct. 1981) (“[A]ppellants’ 

insistence that extortion can be a defense to bribery is incorrect. . . . [E]ven if the 

appellants were subjected to extortion, they c[ould] still be convicted on the 

bribery charge[s].” (internal citation omitted)). In this posture, we will assume

without deciding that the parties’ assumptions are correct. So the dispute about

whether Whitman was extorted would not have “permit[ted] the jury rationally to 

acquit [him] of [bribery] and convict him of [giving illegal gratuities].” Williams, 

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197 F.3d at 1095. If the jury had believed that he was extorted, it would have 

acquitted him of both offenses. 

B. The District Court Did Not Clearly Err when It Calculated McCarty’s 

Sentencing Guidelines Range Using the Loss Amount Caused by All 

Participants in the Jointly Undertaken Criminal Scheme.

Because the district court ruled that McCarty joined a criminal scheme, it 

calculated his Sentencing Guidelines range using the approximately $17.5 million

loss caused by all participants in the jointly undertaken scheme. McCarty 

maintains that this ruling was clearly erroneous because the actions of the other 

government employees were taken independently and were not the product of any 

criminal agreement under the Sentencing Guidelines. See United States Sentencing 

Guidelines Manual § 1B1.3(a)(1)(B) (Nov. 2015). He asserts that the government

employees acted “independently and secretly even between each other[,] behind 

closed doors even in the same office.” We disagree.

We review a loss-amount determination for clear error and must affirm the 

finding by the district court if it is “plausible in light of the record viewed in its 

entirety.” Siegelman, 786 F.3d at 1333 (quoting Anderson, 470 U.S. at 574). The 

government bears the burden of establishing “the pertinent facts by a 

preponderance of the evidence.” United States v. Moran, 778 F.3d 942, 973 (11th 

Cir. 2015). But a district court “need only make a reasonable estimate of the loss, 

given the available information.” Id. (quoting United States v. Barrington, 648 

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F.3d 1178, 1197 (11th Cir. 2011)). And because “[d]istrict courts are in a unique 

position to evaluate the evidence relevant to a loss determination,” we must give 

their determinations “appropriate deference.” Id.

The Guidelines permit a district court to hold participants in a “jointly 

undertaken criminal activity” responsible for the “acts and omissions of others”—

even if the government did not charge a conspiracy. U.S.S.G. § 1B1.3(a)(1)(B); see 

also United States v. Sammour, 816 F.3d 1328, 1340 (11th Cir. 2016). The “acts 

and omissions” must be “within the scope of the jointly undertaken criminal 

activity,” “in furtherance of” the activity, and “reasonably foreseeable in 

connection with” the activity. U.S.S.G. § 1B1.3(a)(1)(B). To determine the “scope 

of the defendant’s agreement” to participate in a jointly undertaken criminal 

scheme, the district court may consider “any explicit agreement or implicit 

agreement fairly inferred from the conduct of the defendant and others.” Id. 

§ 1B1.3, cmt. n.3(B). A defendant’s “[m]ere awareness” that he was part of a 

larger scheme “is alone insufficient” to show that another individual’s criminal 

activity was “within the scope of [the defendant’s] jointly undertaken criminal 

activity.” United States v. Presendieu, 880 F.3d 1228, 1246 (11th Cir. 2018). But 

actions that suggest that the defendant was actively involved in a criminal scheme 

permit the inference that the defendant agreed “to jointly undertake” that scheme. 

U.S.S.G. § 1B1.3, cmt. n.3(B); see, e.g., United States v. Nerey, 877 F.3d 956, 978 

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(11th Cir. 2017). For example, an implicit agreement may be inferred if, even 

though “the various participants in the scheme acted on their own behalf, each of 

the participants knew each other and was aware of the other’s activities, and they 

aided and abetted one another by sharing” information necessary for the operation 

of the scheme. United States v. Hunter, 323 F.3d 1314, 1322 (11th Cir. 2003) 

(discussing United States v. Hall, 996 F.2d 284 (11th Cir. 1993)). 

The record permitted the district court to infer that McCarty agreed to 

participate in a jointly undertaken criminal scheme. For example, McCarty 

participated in the bribery of Philpot. The evidence established that Whitman paid 

a construction company owned by McCarty to make improvements to Philpot’s 

home. And that bribe was similar to the bribes McCarty received from Whitman, 

which suggests that McCarty was aware that he was facilitating a bribe.

Throughout the operation of the scheme, Whitman, Philpot, and Potts spoke 

to each other about the involvement of the other participants, including McCarty. 

Whitman told Potts that he “had [McCarty] working for him” and that he was 

“paying him to get [him] as many loads as possible.” And Potts was not 

“surprised” to learn of their relationship. Whitman also complained to Philpot and 

Potts when he learned that McCarty was giving loads to a competitor. For example, 

he once rhetorically asked Philpot, “[W]hat am I paying him for[?]” In the light of 

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this record, the district court could have reasonably found that McCarty 

participated in similar conversations.

McCarty conferred with Philpot and Potts about the progress of the 

investigation. After investigators searched the office, Philpot and Potts agreed that 

“one of [them] needed to call [McCarty]” and “give him a heads up.” The three 

coworkers then met several times to discuss the status of the investigation. At one 

meeting, McCarty said that “all they had on him was a four-wheeler and a 

Mustang, and he wasn’t going to prison for that.” 

All three government employees were aware of and facilitated the ongoing 

criminal conduct of their coworkers. All three employees worked in a small office, 

enjoyed catered lunches together that were purchased by Whitman, and saw 

Whitman speaking privately to the other participants when he visited the office. As 

his supervisor, Philpot also reviewed McCarty’s work, identified activity, like short 

loading, that was similar to his own fraudulent activity, and failed to take any 

corrective action—even though other employees’ work was “for the most part 

correct.” Philpot testified that he “figured [McCarty] was doing pretty much the 

same thing [he] was doing,” and that “[he] did not want to get him in trouble, and 

[he] didn’t want [him]self to get in trouble either.” And Whitman once invited both 

Philpot and McCarty to a bachelor party in Biloxi, Mississippi at Whitman’s 

expense and gave them money to gamble. 

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McCarty contends that there was insufficient evidence to infer an agreement 

because Whitman approached the employees separately, and they ordinarily did 

not discuss with each other the specific details of their individual dealings with 

Whitman. We disagree.

To be sure, Philpot and Potts testified that they never spoke with McCarty 

about their arrangement with Whitman because they “knew that it was . . . illegal” 

or “wrong,” but an agreement may be “implicit,” U.S.S.G. § 1B1.3, cmt. n.3(B), 

and not every participant in a jointly undertaken criminal scheme must know every 

detail of the others’ participation. It is enough that McCarty was “fully aware of 

the objective of the [scheme] and was actively involved in [it].” United States v. 

McCrimmon, 362 F.3d 725, 732 (11th Cir. 2004); see also id. at 733 (“He was 

certainly not a low-end operative merely aware that he was participating in some 

sort of criminal ring—his knowledge and participation far exceeds that 

description.”). The district court did not clearly err when it calculated McCarty’s 

Guidelines range using the total loss caused by the criminal scheme.

IV. CONCLUSION

We AFFIRM Whitman’s conviction and McCarty’s sentence. 

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