2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-9-2009

USA v. Dean Plaskett

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3531

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Recommended Citation

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-3531

_____________

UNITED STATES OF AMERICA

v.

DEAN C. PLASKETT,

Appellant

________________

No. 08-3532

________________

UNITED STATES OF AMERICA

v.

MARC A. BIGGS,

Appellant.

_____________

On Appeal from the United States District Court 

for the District of the Virgin Islands

(D.C. No. 2007-cr-60)

District Judge: Honorable Curtis V. Gomez

_____________

Submitted Under Third Circuit L.A.R. 34.1(a),

December 2, 2009

Before: McKEE, FUENTES, and NYGAARD, Circuit Judges.
The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231 as Plaskett 1

and Biggs were charged with offenses against the United States. United States v.

Cartwright, 359 F.3d 281, 285 (3d Cir. 2004). As the District Court’s judgments of

conviction and sentence were final decisions, we have jurisdiction over the appeals

pursuant to 28 U.S.C. § 1291. Id.

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(Opinion Filed: December 9, 2009 )

OPINION OF THE COURT

FUENTES, Circuit Judge:

Appellants, Dean C. Plaskett and Marc. A Biggs, appeal from the District Court’s

ruling denying their post-trial motions as well as the underlying and preceding orders and

rulings by the District Court addressing the issues raised in the post-trial motions. Biggs

also challenges aspects of the jury charge and the sentence imposed by the District Court. 

For the reasons that follow, we will affirm the rulings of the District Court and

appellants’ convictions and sentences.1

I.

Because we write primarily for the parties, we only discuss the facts and

proceedings to the extent necessary for the resolution of the case.

Plaskett and Biggs, were, respectively, the Commissioner of the Virgin Islands

Department of Planning and Natural Resources and the Commissioner of Property and

Procurement. They were charged with participating in an elaborate bribery and kickback

scheme with other government officials and complicit business owners. The Indictment
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alleged that the members of the scheme used fictitious and real companies to obtain

government contracts worth more than $1.4 million and progress payments of more than

$1 million, despite little or no contract performance.

At trial, the key government witness was Hollis Griffin, the former Director of the

Division of Environmental Protection. Griffin, a cooperating witness and alleged

coconspirator, provided the critical testimony regarding the alleged payment of bribes at

the heart of the case. Following trial, Plaskett and Biggs were each convicted of one

count of federal program bribery; Plaskett was also convicted of two counts of

obstruction of justice. They were acquitted of the remaining charges against them. The

District Court sentenced Plaskett and Biggs to 108 months and 84 months in prison,

respectively. In addition, the District Court imposed personal money judgments against

them—$1,086,237 against Plaskett and $960,482 against Biggs.

On appeal, Plaskett and Biggs raise a number of challenges to their convictions

and sentences. We review each challenge in turn.

II.

Plaskett challenges the District Court’s exclusion of tapes of recorded phone calls

between himself and Griffin. The Court ruled that while portions of the tapes could be

used to rebut Griffin’s direct testimony, overall, the tapes were hearsay and inadmissible

on direct examination of Plaskett. The Court also concluded that the evidence was more

prejudicial than probative. Plaskett argues that the District Court’s rulings were
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erroneous, but he has not provided either reproductions of the recorded conversations or

written transcripts for the panel to review. Without the capability to examine the

evidence at issue, the panel cannot rule on the merits of Plaskett’s arguments regarding

the tapes and deems such arguments waived.

A week before trial, the government sent defense counsel a letter pursuant to

Federal Rule of Criminal Procedure 16(a) that disclosed that Griffin had used illegal

drugs and had sought drug rehabilitation treatment on two separate occasions; the

government did not provide details of or medical records from either treatment. Plaskett

and Biggs argue that the timing of this disclosure and the failure to provide more details

violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S.

150 (1972). When a motion for a new trial is based on a Brady claim, we “conduct a de

novo review of the district court’s conclusions of law as well as a clearly erroneous

review of any findings of fact.” United States v. Pelullo, 399 F.3d 197, 202 (3d Cir.

2005) (internal quotation marks & citations omitted).

In Brady, the Supreme Court held that “suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material

either to guilt or to punishment . . . .” 373 U.S. at 87. The Supreme Court has further

elaborated that suppressed “evidence is material only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding would

have been different. A ‘reasonable probability’ is a probability sufficient to undermine
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confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).

Assuming arguendo that the details of Griffin’s drug use and subsequent treatment

were favorable to Plaskett and Biggs as impeachment evidence and that such evidence

was suppressed, there was no Brady violation as the evidence was not material. Plaskett

and Biggs concede that they had some knowledge of Griffin’s drug use and rehabilitation

treatment, and they used this evidence to cross-examine Griffin and to discredit him as a

witness during their opening and closing statements. The more detailed information

sought by Plaskett and Biggs “would not have put the whole case in such a different light

as to undermine confidence in the verdict, and would have been merely cumulative.” 

United States v. Johnson, 199 F.3d 123, 128 (3d Cir. 1999); accord Conley v. United

States, 415 F.3d 183, 189 (1st Cir. 2005) (“Suppressed impeachment evidence is

immaterial under Brady . . . if the evidence is cumulative or impeaches on a collateral

issue. Suppressed impeachment evidence, if cumulative of similar impeachment

evidence used at trial . . . is superfluous and therefore has little, if any, probative value.”

(internal citations omitted)). The fact that the evidence of Griffin’s drug abuse was

cumulative of evidence already possessed by Plaskett and Biggs distinguishes the instant

case from United States v. Robinson, — F.3d —, 2009 WL 3358158 (10th Cir. Oct. 20,

2009), on which Plaskett and Biggs rely. In Robinson, the court explicitly held that the

suppressed evidence “was not cumulative. . . . None of the[] avenues of impeachment

[based on the suppressed evidence] is duplicative of those Robinson was able and allowed
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to pursue at trial.” Id. at *7 (citation omitted). In contrast, Plaskett and Biggs could and

did attempt to impeach Griffin based on his drug use, rendering the allegedly suppressed

evidence duplicative. The District Court correctly concluded that the government did not

violate Brady or Giglio.

After trial, Biggs moved for acquittal on the ground that the evidence was

insufficient to support his conviction for federal program bribery, specifically that the

evidence did not establish that he acted with corrupt intent or that he received a cash

payment in connection with a contract in or about mid-January 2003. The District Court

denied the motion. Biggs “must overcome a ‘very heavy burden’ to overturn the jury’s

verdict for insufficiency of the evidence.” United States v. Cuevas-Reyes, 572 F.3d 119,

121 (3d Cir. 2009) (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)). We

sustain a defendant’s conviction if, viewing the evidence in the light most favorable to the

government, “‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt . . . .’” United States v. Voight, 89 F.3d 1050, 1080 (3d

Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Based on the record,

a reasonable jury could have found that the government proved Biggs’s corrupt intent and

receipt of a cash payment in or about mid-January 2003. For the reasons stated by the

District Court, we will affirm the denial of Biggs’s motion for judgment of acquittal.

Biggs raises two challenges to the jury charge. “We exercise plenary review in

determining ‘whether the jury instructions stated the proper legal standard. We review
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the refusal to give a particular instruction or the wording of instructions for abuse of

discretion.’” United States v. Leahy, 445 F.3d 634, 642 (3d Cir. 2006) (quoting United

States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995)). In our review, “we consider the

totality of the instructions and not a particular sentence or paragraph in isolation.” Id.

(internal quotation marks & citation omitted).

First, Biggs argues that the District Court erred in denying his request to instruct

the jury on good faith; this argument is without merit. We have held that “a district court

does not abuse its discretion in denying a good faith instruction where the instructions

given already contain a specific statement of the government’s burden to prove the

elements of a ‘knowledge’ crime.” Leahy, 445 F.3d at 651 (citation omitted). In the

instant case, the District Court’s charge clearly defined the elements of the crimes with

which Biggs was charged, including the intent element. In light of these instructions, a

good faith charge was “unnecessary and redundant. If the jury found that [Biggs] had

acted in good faith, it necessarily could not have found that [he] had acted with the

requisite scienter.” Id. Thus, the District Court did not err in failing to charge the jury on

good faith.

Second, Biggs contends that the District Court incorrectly instructed the jury on

federal program bribery, failing to properly explain the requisite mens rea. As Biggs did

not object to the charge at trial, we review for plain error. United States v. Williams, 464

F.3d 443, 445 (3d Cir. 2006). Biggs was charged with three counts of federal program
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bribery, in violation of 18 U.S.C. § 666(a)(1)(B). The jury instructions delivered by the

District Court were consistent—virtually identical—with the Third Circuit model jury

instructions for Solicitation of a Bribe by an Agent of a Program Receiving Federal Funds

(18 U.S.C. § 666(a)(1)(B)). The District Court also elaborated on the mens rea required

for a violation of the statute, clarifying what it means to act “corruptly,” as follows:

A public official demands, seeks, or receives a thing of value corruptly

if the official accepts the item knowingly and intentionally, with the purpose

either of accomplishing an unlawful end or lawful result, or of accomplishing

some otherwise lawful end or lawful result influenced by the receipt of the

thing of value.

Corrupt acts are normally motivated by hope or expectation of either

financial gain or other benefit to one’s self or some aid or profit to another.

In considering this element, remember that it is the defendant’s intent,

at least in part, to be influenced or rewarded, which is important, not his or

the Virgin Islands Government’s or his agency’s subsequent actions.

Thus, the prosecution does not have to prove that the defendant

received the bribe or that the bribe actually influenced the Government of the

Virgin Islands, or any agency thereof.

It is not even necessary that the defendant had the authority to perform

the act sought.

Also, if you find that the defendant accepted the payment with the

intent to be rewarded for a decision already made, it does not matter that the

payment was not accepted or solicited until after the transaction occurred.

(Biggs J.A. 2991–92.) As the District Court thoroughly explained the mens rea required

for a “corrupt intent,” the Court did not commit plain error in its charge to the jury.

Biggs challenges the personal money judgment of $960,482 entered against him on

the following grounds: (1) lack of notice in the Indictment; (2) the District Court’s failure

to limit the personal money judgment to the maximum amount of restitution; and (3) the
Biggs also contends that the District Court erred in failing to make him and his 2

co-defendants jointly and severally liable. As the judgment expressly states to the

contrary, this argument is without merit.

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District Court’s failure to consider Biggs’s ability to pay. As these issues present 2

questions of law, we exercise plenary review. United States v. Vampire Nation, 451 F.3d

189, 198 (3d Cir. 2006) (citing United States v. Ledesma-Cuesta, 347 F.3d 527, 530 (3d

Cir. 2003)).

With respect to notice, the Indictment contained forfeiture allegations, which

explained that once convicted, Biggs would be required to forfeit any property

constituting or derived from proceeds traceable to the offense or an equivalent sum of

money. The Indictment further disclosed that the government would seek forfeiture of

substitute assets to recover the illicit proceeds. Under Federal Rules of Criminal

Procedure 7(c)(2) and 32.2(a), this was sufficient notice that Biggs could be subject to

forfeiture and a personal money judgment.

Biggs asserts without authority that the amount of the personal money judgment

entered against him should not have exceeded the maximum amount of restitution Biggs

could have been ordered to pay based upon his count of conviction, i.e., the $162,250

payment issued under a coastal zone management contract. In effect, Biggs contends that

the District Court erred in including within the calculation the illicit proceeds related to

the counts on which he was acquitted. Biggs erroneously conflates forfeiture and

restitution, which “are distinct remedies. Restitution is remedial in nature, and its goal is
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to restore the victim’s loss. Forfeiture, in contrast, is punitive; it seeks to disgorge any

profits that the offender realized from his illegal activity. Given their distinct nature and

goals, restitution is calculated based on the victim’s loss, while forfeiture is based on the

offender’s gain.” United States v. Webber, 536 F.3d 584, 602–03 (7th Cir. 2008)

(internal citations omitted). Moreover, “[e]ven counts on which the jury acquits may be

considered in sentencing, if the judge finds by a preponderance of the evidence that the

criminal activities occurred.” United States v. Genova, 333 F.3d 750, 762 (7th Cir. 2003)

(citation omitted). “So long as the sentencing court finds by a preponderance of the

evidence that the criminal conduct through which the proceeds were made was

foreseeable to the defendant, the proceeds should form part of the forfeiture judgment.” 

United States v. Fruchter, 411 F.3d 377, 384 (2d Cir. 2005) (citation omitted). The

District Court found by a preponderance of the evidence that the bribery and kickback

scheme in which Biggs participated netted $960,482. Accordingly, the District Court was

permitted to issue a personal money judgment in that amount for which Biggs and his codefendants were jointly and severally liable.

Biggs’s final challenge to the personal money judgment is directly contradicted by

our precedent. In Vampire Nation, we held that “in personam forfeiture judgments are

appropriate under 21 U.S.C. § 853, even where the amount of the judgment exceeds the

defendant’s available assets at the time of conviction.” 451 F.3d at 203. Thus, this

argument is unavailing.
Biggs further contends that the District Court departed upward from the advisory 3

Guidelines range without prior notice. Contrary to this assertion, the District Court

calculated a higher total offense level than that in the Presentence Report (“PSR”)—31

instead of 28—and varied downward from the advisory range of 108 to 135 months to

sentence Biggs to 84 months’ incarceration. Accordingly, this contention is without

merit.

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Biggs challenges the following aspects of the District Court’s Guidelines

calculations: (1) the sixteen-level increase based on the net value of the benefit received

from the scheme, pursuant to U.S.S.G. §§ 2C1.1(b)(2) and 2B1.1(b)(1)(I); and (2) the

three-level increase based on Biggs’s managerial or supervisory role, pursuant to

U.S.S.G. § 3B1.1(b). We review the sentence imposed by a district court for abuse of 3

discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). “[F]acts

that are considered at sentencing, as a general matter, must be proved by a preponderance

of the evidence.” United States v. Berry, 553 F.3d 273, 280 (3d Cir. 2009) (citation

omitted). The two challenged increases in the offense level were based upon facts found

by the District Court by a preponderance of the evidence. These factual findings were not

clearly erroneous, and the increases did not constitute an abuse of discretion.

III.

For the foregoing reasons, we affirm the judgment of the District Court.