[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________

No. 12-11066

_________________________

D.C. Docket No. 3:10-cr-00023-TCJ-TEM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

versus

TONY DEVAUGHN NELSON, 

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(March 13, 2013)

Before WILSON and HILL, Circuit Judges, and HUCK,* District Judge.

HUCK, District Judge:

 * Honorable Paul C. Huck, Senior United States District Judge for the Southern District 

of Florida, sitting by designation.

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Tony Nelson, a former member of the Jacksonville Port Authority’s 

(JaxPort[’s]) board of directors, was convicted in the Middle District of Florida for

honest-services mail fraud under 18 U.S.C. §§ 1341 and 1346, federal funds 

bribery under 18 U.S.C. § 666(a)(1)(B), conspiracy to commit mail fraud and 

bribery under 18 U.S.C. § 371, and several other crimes predicated on these 

offenses. On appeal, he challenges his convictions on three grounds. First, Nelson 

argues that the fraud and bribery statutes under which he was convicted are 

unconstitutionally vague as applied in this case because they fail to describe the 

nature and scope of the fiduciary obligations owed by public officials to the 

public—i.e. they lack an “ascertainable standard” by which Nelson and the jury

could have determined whether his conduct was unlawful. Second, Nelson argues 

that he is entitled to a new trial because the district court improperly instructed the 

jury on what constitutes a “bribe” for purposes of his honest-services and federal 

funds bribery charges. Finally, Nelson argues that the district court committed 

reversible error by admitting the testimony of JaxPort’s director of procurement, 

Louis Naranjo, which he asserts allowed the jury to convict him on the basis of 

uncharged conduct. 

Upon review of the parties’ briefs and the record, and with the benefit of oral 

argument, we affirm.

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I.

JaxPort is an independent agency and political subdivision of the State of 

Florida and is responsible for the development and maintenance of Jacksonville’s 

public seaport terminals. The agency is governed by a seven-member, allvolunteer board. The Mayor of Jacksonville appoints four members, and the 

Governor of Florida appoints three others. The board elects a chairman, who leads 

the board. Board members serve four-year terms and may serve a maximum of 

two terms. JaxPort has a staff of approximately 150 employees and several 

officers, including a chief executive officer, who reports to the board. 

Nelson was appointed to the board in 2001 by Jacksonville Mayor John 

Delaney and served as chairman of the board from March 2006 until September 

2007. He remained a member of the board until resigning in 2008 amid allegations 

that he solicited and accepted bribes from one of JaxPort’s private dredging 

contractors, Subaqueous Services, Inc. (“SSI”), and its owner, Lance Young. 

These allegations, which we summarize here, led to an FBI investigation and 

ultimately to this criminal action.1

Nelson was introduced to Young in the fall of 2005 by another JaxPort board 

member, Marty Fiorentino, at Young’s Jacksonville Jaguars luxury suite. At the 

 1 We recount the facts as the jury found them. We also describe here certain undisputed 

facts that, while unnecessary to the jury’s verdict, are otherwise relevant to this appeal. Where 

helpful, such as where we recount a witness’s characterization of events or a witness’s testimony 

involving statements made to him or her by someone else, we indicate who testified to that fact. 

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time, Fiorentino, a Jacksonville attorney and lobbyist, was under contract with 

Young to lobby on behalf of SSI in the Jacksonville area. For these services, 

Young paid Fiorentino $5,000 per month. According to Nelson, Fiorentino told 

him that the City of Jacksonville’s Deputy General Counsel and Co-Ethics Officer, 

Steven Rohan, advised Fiorentino that he could lobby on behalf of SSI so long as 

he abstained from voting on matters involving SSI or Young. 

Following their initial meeting, Young and Nelson became friendly, 

speaking by telephone on a weekly basis and socializing regularly. Nelson was a 

frequent guest in Young’s Jaguars suite, and whenever Young was in Jacksonville 

they would have dinner at Young’s expense. Although they did not yet have a 

formal understanding that Nelson would help SSI with its business at JaxPort, 

Nelson offered Young advice on submitting bids for JaxPort projects. For 

example, Young testified that, in the fall of 2005, Nelson suggested that SSI 

include in its first bid proposal a provision for participation by “disadvantaged” 

contractors, which was supposed to improve the chances of SSI’s bid being 

selected. Although JaxPort did not accept this initial bid, Nelson would credit the 

success of SSI’s subsequent bids, at least in part, to this advice. 

Around the same time, Nelson urged JaxPort staff to retain SSI for dredging 

work. Louis Naranjo, JaxPort’s director of procurement, testified that in 

November 2005 JaxPort’s chief financial officer, Ron Baker, asked Naranjo to 

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attend a meeting with Nelson at Nelson’s downtown Jacksonville office.2 

According to Naranjo, Nelson complained about the performance of JaxPort’s 

dredging contractor, SeaTech, and told Naranjo that he should cancel JaxPort’s 

contract with the company. Naranjo testified that he responded by telling Nelson 

that he saw no reason to cancel the SeaTech contract and that, in any event, he did 

not have such authority. In response, Nelson told Naranjo that if Naranjo could not

cancel the contract, Nelson would find someone else who could. Naranjo further 

testified that Nelson told him that SSI was “ready to go and could do this work.” 

Meanwhile, Young grew frustrated because Fiorentino was, in Young’s

view, not doing enough to help SSI at JaxPort. Young testified that Fiorentino was 

“really good at introducing [him] to people” but “wasn’t doing anything for 

[him]”—“there was no movement on [his] problem.” Young added that, in the 

summer of 2006, when he told Fiorentino he was not going to renew their 

agreement, Fiorentino suggested that he speak with Nelson, who by then was 

chairman of the JaxPort board.

According to Young, when he expressed to Nelson his disappointment with 

Fiorentino, Nelson responded that he was getting “twice as much” done for Young 

and SSI than Fiorentino ever did. Young further testified that Nelson told him that 

 2 As discussed below, Nelson argues that Naranjo’s testimony concerning the content of 

this meeting, which predates the alleged conspiracy, should not have been allowed into evidence. 

This argument forms the basis for Nelson’s third ground for reversal. 

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he “wanted to be on the payroll,” which Young understood to be a solicitation for a 

bribe. 

After considering Nelson’s request and discussing the matter with his statewide lobbyist, Frank Bernadino, Young arranged to retain Nelson as a “consultant” 

through Bernadino’s company, the Wren Group, at a rate of $8,500 per month. To 

avoid making payments directly to Nelson, Young paid Nelson’s fees to Wren 

Group, which in turn paid Nelson through Nelson’s company, Ja-Ash, Inc. 

Regular payments were made in this fashion from August 2006 through the 

summer of 2007, after which time, according to Young, he and Nelson agreed that 

Nelson would be paid through a deferred, lump-sum payment. According to 

Young, this new arrangement was put in place because SSI had to discontinue all 

lobbying activities in anticipation of the sale of SSI to Orion Marine Group, which 

left Young without a method of paying Nelson through Wren Group. Young told 

Nelson that he would be paid in full following the sale of SSI. In accordance with 

their agreement, Young gave Nelson a check for $50,000 in March 2008. 

The testimony presented at trial reflects that, although Nelson never voted 

on an SSI contract while receiving payments from the company, he was frequently 

called upon by Young to help SSI with various other matters before JaxPort. 

Young testified, for example, that he asked Nelson for his assistance in persuading 

JaxPort to approve a change order to one of SSI’s dredging contracts. According 

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to Young, Nelson later reported that he made several phone calls to unspecified 

JaxPort staff members and assured Young that the change order would be 

approved. The change order, which was indeed approved in September 2007, 

added almost $150,000 of work to SSI’s contract. 

Young also testified that Nelson agreed to help SSI obtain early release of 

approximately $585,000 in “retainage” (a portion of the earned contract price 

withheld until project completion) under a contract with JaxPort. JaxPort’s 

manager of contracts and administration, Elaine Varnot, corroborated this 

testimony, stating that she was instructed by JaxPort’s director of finance and the 

project manager to release the retainage funds to SSI (through SSI’s general 

contractor for the project), which she eventually did. Varnot added that, in her 

experience, the making of such an exception was unprecedented. Other examples 

of matters in which Nelson apparently intervened on SSI’s behalf include instances 

where he requested that JaxPort increase the price of its contract with SSI to 

account for increased fuel costs (a request that was ultimately denied) and where 

he requested that SSI be paid on particular claims. 

Nelson’s relationship with Young and SSI did not go unnoticed. In response 

to complaints from other JaxPort vendors about the alleged conflict of interest, in 

February 2007, Baker called a private meeting with JaxPort staff to discuss the 

Nelson-SSI relationship. At that meeting, Baker directed JaxPort’s ethics officer, 

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Linda Williams, to conduct an investigation. That same day, Nelson met with the 

City of Jacksonville’s general counsel, Cindy Laquidara, to discuss the 

accusations. Laquidara testified that Nelson told her that he and SSI once 

submitted a joint bid for a project through the United States Army Corps of 

Engineers (“Corps”), but that the bid failed. Nelson did not disclose that he was 

also receiving payments from SSI for “consulting” services. Based on these 

representations, Laquidara sent an email to Nelson advising him that his 

relationship with SSI did not present any conflicts of interest; Nelson then 

forwarded the email to Baker. Nelson also denied having a business relationship 

with SSI or Young (beyond the Corps bid) in his conversations with Williams and 

others. Recordings of Nelson’s meeting with Williams reflect that he denied ever 

receiving “a dollar, a penny, or a nickel” from SSI. 

By February 2008, the FBI had begun intercepting Nelson’s calls with

Young.3

 In these recordings, Nelson and Young are heard discussing, among other 

things, Young’s negotiations to sell SSI to Orion and how the new ownership 

would affect the level of access that Nelson was willing to provide the company at 

JaxPort. Nelson suggested that, without Young, Orion would not enjoy the same 

level of access that SSI had enjoyed in the past, which prompted a discussion about

possible arrangements whereby Nelson could continue to work on behalf of the 

 3 Recordings of these calls were introduced at trial through Young. 

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company. Under one suggestion, Young, as a consultant to Orion, would have 

facilitated payments between Orion and Nelson, as Bernardino had done through 

the Wren Group. However, both Nelson and Young were concerned that, because

Orion was such a large company, Nelson would not have the same “coverage” with 

Orion as he had with SSI. For this reason, Nelson and Young also discussed the 

possibility of presenting “opportunities” to a company named Manson 

Construction, an Orion competitor.

Before these opportunities materialized, however, Nelson and Young were 

approached by the FBI and were specifically asked about their relationship. 

Angela Kapala-Hill, the FBI Special Agent who conducted the interviews, testified 

that Young initially claimed that the $50,000 payment was for a “consulting fee,” 

while Nelson claimed that it was a loan. Nelson also denied having a business 

relationship with SSI. However, according to Kapala-Hill, Nelson would later 

acknowledge that the payment was for providing SSI with “access” at JaxPort, and 

that, without these payments, he would not have helped the company to the extent

that he did.4

 Kapala-Hill further testified that Nelson admitted to knowing that the 

payments were illegal.5

 4 Young, who would become a cooperating witness for the Government, also eventually 

admitted that the payments were for providing access to JaxPort.

5 On cross-examination, Kapala-Hill acknowledged that the word “bribe” did not appear 

in any of the Government’s notes of her interviews with Nelson. She also acknowledged that the 

notes from one of the interviews, prepared by another agent present at the meeting, reflected that 

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In January 2010, a grand jury indicted Nelson on one count of conspiracy to 

commit honest-services mail fraud, bribery, and money laundering (18 U.S.C. § 

371); twelve counts of mail fraud based on checks mailed to Nelson through the 

Wren Group (18 U.S.C. §§ 1341, 1346); eleven counts of money laundering based 

on the same checks (18 U.S.C. § 1956(a)(1)(B)(I)); twelve counts of federal-funds 

bribery (18 U.S.C. § 666(a)(1)(B)); and one count of making a false statement to 

an FBI agent (18 U.S.C. § 1001).

6

 At the conclusion of a three-week trial, the jury

found Nelson guilty on all but one count of mail fraud. This appeal followed.

II.

Nelson challenges his conviction on three grounds. First, echoing concerns 

expressed in Justice Scalia’s concurring opinion in Skilling v. United States, 130 S. 

Ct. 2896 (2010), Nelson argues that the mail fraud and bribery statutes under 

which he was convicted, 18 U.S.C. §§ 1341, 1346, 666(a)(1)(B), are 

unconstitutionally vague as applied to his conduct. Second, Nelson argues that the 

district court’s instructions to the jury on his honest-services mail fraud and federal 

program bribery counts were plainly erroneous because, according to Nelson, the 

instructions effectively provided, in a circular fashion, that “Nelson took a bribe if 

 

Nelson said that he “now” knows that the payments were “wrong,” with the word “now” 

underlined. 

6 Counts 37-43, which charged Nelson with a separate fraud scheme, were severed and 

dismissed after trial. 

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he had the intent to do so and had the requisite intent if he in fact took a bribe,”

leaving the jury to speculate as to an essential point of law—i.e. what constitutes a 

“bribe.” Lastly, Nelson argues that the district court abused its discretion in 

admitting Naranjo’s testimony about his November 2005 meeting with Nelson 

because the events described by Naranjo relate to uncharged conduct that preceded 

the alleged conspiracy. We address these issues in turn. 

A. Void for Vagueness

We review whether §§ 1341, 1346, and 666(a)(1)(B) are unconstitutionally 

vague as applied to Nelson’s conduct de novo. See United States v. Wayerski, 624 

F.3d 1342, 1347 (11th Cir. 2010). As an outgrowth of the Fifth Amendment’s Due 

Process Clause, we have held that “[a] statute is void for vagueness if it fails to 

define the criminal offense [1] with sufficient definiteness that ordinary people can 

understand what conduct is prohibited and [2] in a manner that does not encourage 

arbitrary and discriminatory enforcement.” United States v. Tobin, 676 F.3d 1264, 

1278 (11th Cir. 2012) (internal quotation marks omitted). We have also 

recognized, however, that “[s]tatutes are not automatically invalidated as vague 

simply because difficulty is found in determining whether certain marginal 

offenses fall within their language.” United States v. Duran, 596 F.3d 1283, 1290 

(11th Cir. 2010) (quoting United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 

32 (1963)) (internal quotation marks omitted). Where the law is definite, the 

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general rule is that knowledge of the law is presumed; ignorance of the law or a 

mistake of law is no defense to a criminal prosecution. Id.

According to Nelson, all three statutes share the same infirmity: as applied 

to the facts of his case, each lacks a “clear criterion of guilt” distinguishing 

between lawful and unlawful conduct. Specifically, Nelson argues that, because 

his convictions for mail fraud and bribery ultimately rested upon allegations of 

“honest-services” fraud under § 1346, the absence of language in the statute

describing the character and scope of the fiduciary relationship from which the 

honest-services obligation arises precluded Nelson (and the jury) from determining 

whether his relationship with Young and SSI was prohibited.7

 This indeterminacy, 

 7 The federal mail fraud statute prohibits the use of the mails in furtherance of a “scheme 

or artifice to defraud.” 18 U.S.C. § 1341. The “honest-services amendment,” 18 U.S.C. § 1346, 

modifies the federal mail fraud statute to allow the United States to predicate a mail fraud charge 

on a “scheme or artifice to deprive another of the intangible right of honest services.” Thus, as 

modified, § 1341 provides in relevant part: 

Whoever, having devised or intending to devise any scheme or 

artifice to [deprive another of the intangible right of honest 

services], for the purpose of executing such scheme or artifice or 

attempting so to do, places in any post office or authorized 

depository for mail matter, any matter or thing whatever to be sent 

or delivered by the Postal Service, . . . or takes or receives 

therefrom, any such matter or thing . . . shall be fined under this 

title or imprisoned not more than 20 years, or both.

In this case, the honest-services statute also potentially modifies the federal funds bribery statute, 

18 U.S.C. § 666(a)(1)(B), which makes it a crime to “corruptly” demand, solicit, or accept a 

bribe. The jury in this case was instructed that, “[t]o act ‘corruptly’ means to act voluntarily, 

deliberately and dishonestly to either an unlawful end or result or to use an unlawful means to 

accomplish an otherwise lawful end or result.” Nelson could thus be found to have acted 

“corruptly” under the bribery statute if he intended to deprive another of the right to his honest 

services. 

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he adds, allowed the jury to determine his guilt “based on the ‘personal 

predilections’ of its members,” and enabled the Government to prosecute him in a 

discriminatory fashion.8

 

As discussed below, because Nelson’s argument hinges on the supposed 

vagueness of the honest-services statute, we do not write on a clean slate. To 

frame our discussion, we first summarize the history of the honest-services 

doctrine and the relevant parts of the Supreme Court’s decision in Skilling, which

upheld § 1346 against a facial challenge on due process grounds through a limiting 

construction of that statute. Second, in light of the majority’s reasoning in that 

case, we consider whether there is merit to Nelson’s contention that the facts 

surrounding his arrest and conviction are such that it would violate due process to 

uphold his convictions under §§ 1341, 1346, and 666(a)(1)(B).

1.

The honest-services doctrine arose from various decisions interpreting the 

phrase “scheme or artifice to defraud” in the original mail fraud statute as 

encompassing not only deprivations of money or property but also certain 

“intangible rights.” See Skilling, 130 S. Ct. at 2926. “Honest-services” fraud, 

these courts reasoned, differed from traditional fraud in that the victim of the fraud 

 8 Nelson argued and lost a motion to dismiss for selective prosecution at trial. He does 

not appeal that ruling here. 

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did not necessarily suffer a loss of money or property. See, e.g., Shushan v. United 

States, 117 F.2d 110, 119 (5th Cir. 1941). For example, “if a city mayor (the 

offender) accepted a bribe from a third party in exchange for awarding that party a 

city contract, yet the contract terms were the same as any that could have been 

negotiated at arm’s length, the city (the betrayed party) would suffer no tangible 

loss.” See Skilling, 130 S. Ct. at 2926. In that example, the actionable harm 

derived from “the denial of that party’s right to the offender’s ‘honest services.’” 

Id. (quoting United States v. Dixon, 536 F.2d 1388, 1400 (2d Cir. 1976)). 

In 1987, however, the development of the “intangible rights” line of cases, 

and thus the honest-services doctrine, came to a halt with the Supreme Court’s 

decision in McNally v. United States, 483 U.S. 350 (1987). The McNally Court 

held that the mail fraud statute must be read as limited in scope to the protection of 

property rights. Id. at 360. “If Congress desires to go further,” the Court added, “it 

must speak more clearly than it has.” Id. 

Congress responded the following year by adopting § 1346, which provides: 

“For the purposes of [Chapter 63 of Title 18 of the United States Code (“Mail 

Fraud and Other Fraud Offenses”)], the term ‘scheme or artifice to defraud’ 

includes a scheme or artifice to deprive another of the intangible right of honest 

services.” In effect, the statute restored the mail fraud statute to its pre-McNally

position and incorporated those decisions of the courts of appeals recognizing an 

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intangible right to honest services. Skilling, 130 S. Ct. at 2928; United States v. 

Walker, 490 F.3d 1282, 1297 n. 16 (11th Cir. 2007). 

Against this background, Jeffrey Skilling, the former Chief Executive 

Officer of Enron Corporation, appealed his conviction in the Southern District of 

Texas for conspiracy to commit honest-services wire fraud under § 1346, arguing 

that § 1346 was unconstitutionally vague in violation of the Fifth Amendment.

9

 

Styling his argument as a facial, rather than as an as-applied challenge to the 

statute, Skilling identified what he believed were fatal indeterminacies in § 1346 

and the decisional law it incorporated. Of relevance here, Skilling claimed that the 

pre-McNally honest-services cases, and thus the statute itself, failed to address or 

were in conflict on various core issues, such as whether the obligation to provide 

honest services extends only to persons taking “official action” and whether the 

use of the fiduciary position to accomplish the alleged fraud is a necessary element 

of the offense. See Brief for Petitioner at 40–42, 130 S. Ct. 2896 (2010). “Without 

consensus on these basic questions,” Skilling maintained, “any argument that the 

statute codified a single, coherent, preexisting conception of honest services—a 

conception obviously available to ordinary persons from prior caselaw—falls apart 

completely.” Id. at 42.

 9

 Skilling also argued that § 1346 did not reach his conduct (artificially inflating stock 

prices to profit from increased salary and bonuses).

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While acknowledging that Skilling’s argument “ha[d] force,” as the preMcNally cases “were not models of clarity or consistency,” the Supreme Court 

held that any vagueness concerns regarding § 1346 could be obviated through a 

limiting construction of the statute. Id. at 2929 – 31. “The ‘vast majority’ of the 

honest-services cases,” the Court observed, “involved offenders who, in violation 

of a fiduciary duty, participated in bribery or kickback schemes.” Id. at 2930 

(citing United States v. Runnels, 833 F.2d 1183, 1187 (6th Cir. 1987)).10 By 

limiting the scope of § 1346 to these “core” pre-McNally applications, the Court 

found that § 1346 did not present any due process concerns, either in terms of fair 

notice or the risk of arbitrary and discriminatory enforcement. Id. at 2931– 33. 

The Court concluded: “[a] criminal defendant who participated in a bribery or 

kickback scheme, in short, cannot tenably complain about prosecution under § 

1346 on vagueness grounds.” Id. at 2934.11 

Writing separately, Justice Scalia responded that, even if the pre-McNally

honest-services doctrine could be pared down to a bribery and kickback core (he 

 10 Surveying various pre-McNally decisions, the Court noted that the circuit courts 

uniformly described bribery and kickbacks as the “core,” “most obvious,” “typical,” “clear-cut,” 

and “uniform[]” forms of honest-services fraud. Id. at 2931. 

11 Despite upholding the constitutionality of the honest-services statute, the Court vacated 

Skilling’s conviction on the basis that, following the limiting construction of § 1346, his conduct 

did not lie within the reach of the statute. 

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believed it could not),12 limiting the statute in this manner would still not solve its 

“most fundamental indeterminacy: the character of the ‘fiduciary capacity’ to 

which the bribery and kickback restriction applies.” Id. at 2938 (Scalia, J., 

concurring in part and concurring in judgment). “What,” he asked rhetorically, “is 

the criterion of guilt?” Id. at 2939. Without a clear answer to this question (among 

others), Justice Scalia reasoned, § 1346 did not give sufficient notice of the 

conduct prohibited under the statute.

13 

The majority responded to this argument in a footnote, explaining that 

debates concerning the source and scope of fiduciary duties were “rare” in preMcNally bribery and kickback cases, and that “[t]he existence of a fiduciary 

relationship, under any definition of that term, was usually beyond dispute.” Id. at 

2931 n. 41. As examples, the Court cited the relationships between public 

officials and the public, employers and employees, and union officials and union 

members. Id. Later in the opinion, the Court added that, “[a]s to fair notice . . . it 

has always been ‘as plain as a pikestaff that’ bribes and kickbacks constitute 

 12 Justice Scalia remarked: “Perhaps it is true that ‘Congress intended § 1346 to reach at

least bribes and kickbacks. That simply does not mean, as the Court now holds, that § 1346 

criminalizes only bribery and kickbacks.” Id. at 2939 (Scalia, J., concurring in part and 

concurring in judgment) (emphasis in original) (internal citations omitted). 

13 Justice Scalia concurred with the majority in that he agreed that Skilling received a fair 

trial and that Skilling’s honest-services conviction should be reversed. Unlike the majority, 

however, Justice Scalia would have vacated Skilling’s conviction on constitutional grounds. 

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honest-services fraud, and the statute’s mens rea requirement further blunts any 

notice concern.” Id. at 2933 (internal citations omitted). 

2.

Against this narrow framework, Nelson challenges his convictions below on 

an as-applied basis, arguing that the scope of his fiduciary obligations to JaxPort 

were indeterminate under §§ 1341, 1346, and 666(a)(1)(B). As a result, Nelson 

argues, he and the jury were left without any criterion by which to judge whether 

the payments he received from Young and SSI were proper, such as legitimate 

payments to a lobbyist, or improper, such as bribes. Further, he argues, the jury 

was left without any guidance in determining whether he acted with “corrupt 

intent” or the “intent to defraud,” as is required under these statutes. 

Nelson emphasizes that his is not a “prototypical” bribery case where 

“neither the financial relationship between the public official and his payor nor the 

acts performed by the official on behalf of the payor are legitimate . . . .” Rather, 

he argues, this is a case where “neither the existence of a contractual financial 

relationship with a public official nor the conduct engaged in by the public official 

is—without more—illegitimate.” To this point, Nelson notes that, as an unpaid 

and part-time board member, he was allowed to do business with companies that 

contract with JaxPort, provided only that he abstain from voting on any matters in 

which he might have a conflict of interest. He adds that, as a board member, he 

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never voted on a contract under which Young or SSI stood to benefit, and that, for 

much of his tenure, all of JaxPort’s contracts with private companies were 

approved by JaxPort’s staff, rather than by its board. 

Of course, that this case is not “prototypical,” or that Nelson claims that he 

did not personally know that his conduct was unlawful, does not necessarily mean 

that the statutes under which he was convicted are unconstitutional as applied. 

“Void for vagueness simply means that criminal responsibility should not attach 

where one could not reasonably understand that his conduct is proscribed.” United 

States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32 (1963) (emphasis added). It 

does not mean that the statute must define every factual situation that may arise. 

United States v. Biro, 143 F.3d 1421 (11th Cir. 1998). The existence of “marginal 

cases in which it is difficult to determine the side of the line on which a particular 

fact situation falls is no sufficient reason to hold the language too ambiguous to 

define a criminal offense.” Id. at 1430 (quoting United States v. Petrillo, 331 U.S. 

1 (1947) (internal quotation marks omitted)). Moreover, ignorance of the fact that 

one’s conduct is a violation of the law is no defense to criminal prosecution. 

United States v. Duran, 596 F.3d 1283, 1291 (11th Cir. 2010) (citing Cheek v. 

United States, 498 U.S. 192 (1991)). 

In light of these principles, as well as the majority’s reasoning in Skilling, 

we conclude that the statutes at issue gave Nelson adequate notice of the conduct 

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they prohibit. At the outset, we note that the supposed “indeterminacies” that 

Nelson highlights in these provisions—namely, the absence of statutory language 

or pre-McNally caselaw explicitly defining the scope of the honest-services 

obligation—were acknowledged by the Skilling majority and found insufficient to 

warrant striking down § 1346 on vagueness grounds. We thus reject Nelson’s 

contention that “the issues raised by Justice Scalia were simply not addressed by 

the majority, and thus remained as problems for the lower courts to address in the 

future.” 

While it is true that Skilling does not foreclose an as-applied challenge to the 

§ 1346 (or to other statutes under which criminality may depend on whether the 

defendant intended to violate his or her duty of honest services), we are mindful of 

the Supreme Court’s observation that defendants charged with bribery or 

kickbacks face an uphill climb in arguing they did not and could not reasonably

understand that their conduct was illegal under the statute. We are similarly 

reluctant to find § 666(a)(1)(B) unlawful as applied, as Nelson’s challenge to the 

federal funds bribery statute is essentially the same as his challenge to the mail 

fraud and honest-services provisions.14 

 14 Nelson seems to argue that, because § 666(a)(1)(B) required that the jury find that he 

acted “corruptly,” the indeterminacy of his fiduciary obligations under the honest-services statute 

spill over into his federal funds bribery charges. We note that we recently held that the phrase 

“corrupt[] . . . intent to influence or reward” in the bribery context is unambiguous, particularly 

in light of statute’s scienter requirement. See United States v. Benner, 442 F. App’x 417, *1 

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21

Simply put, we find that there is nothing in the nature of Nelson’s conduct or 

his role on the JaxPort board, in particular, that separates him from those similarly 

charged with bribery who, according to the Supreme Court, “cannot tenably 

complain about . . . vagueness.” Nelson’s case is not exceptional. In the first 

place, though he was not paid for his work as a JaxPort board member and worked 

only part time, Nelson does not dispute that he was a public official. As we have 

previously held, “[p]ublic officials inherently owe a fiduciary duty to the public to 

make governmental decisions in the public’s best interest.” United States v. de 

Vegter, 198 F.3d 1324, 1328 (11th Cir. 1999) (citing United States v. Lopez-Lukis, 

102 F.3d 1164, 1169 (1997)). Indeed, we have described bribery of a public 

official as the “paradigm case” of honest-services fraud. United States v. 

Langford, 647 F.3d 1309, 1321 (11th Cir. 2011). 

Further, the evidence presented at trial reflects that Nelson agreed to 

represent SSI’s interests before JaxPort in exchange for monthly payments routed 

through a middleman. While we have not held that a quid pro quo exchange is 

required in all honest-services cases, the existence of such an arrangement 

undoubtedly blunts any argument that the defendant lacked notice that his conduct 

was unlawful. This “classic” bribery and kickback scenario, like the scheme at 

 

(11th Cir. 2011) (affirming the defendant’s conviction under 18 U.S.C. § 215(a)(1)). Accord

United States v. McElroy, 910 F.2d 1016, 1021 (2d Cir. 1990).

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22

issue in McNally, is squarely within the range of conduct that Congress aimed to 

prohibit through the passage of § 1346. See Skilling, 130 S. Ct. at 2922.15 

We also find unpersuasive Nelson’s argument that §§ 1341, 1346, and 

666(a)(1)(B) are vague as applied because these statutes and the cases interpreting 

them do not explicitly limit their application to bribes and kickbacks taken in 

connection with the performance of one’s “official” or “customary” powers or 

duties. Even if, for argument’s sake, we were to find the statutes vague in this 

regard, Nelson’s argument assumes that his actions did not involve the exercise of 

his official or customary powers.16 We disagree. For purposes of the honestservices and federal funds bribery statutes, a board member who uses his position 

of authority to direct or influence someone else in his organization to do something 

 15 In finding that Congress intended to “reverse” McNally on its facts,” the Skilling

majority rejected the Government’s argument that § 1346 proscribes all “undisclosed selfdealing by a public official or private employee—i.e. the taking of official action by the 

employee that furthers his own undisclosed financial interests while purporting to act in the 

interests of those to whom he owes a fiduciary duty.” 130 S. Ct. at 2932 (internal quotation 

marks omitted). Nelson argues that several of our earlier decisions, upon which we rely today, 

similarly recognize an unrestrained “undisclosed conflict of interest” theory of honest-services 

fraud. See, e.g., Lopez-Lukis, 102 F.3d at 1169 (“If the official secretly makes his decision 

based on his own personal interests . . . the official has defrauded the public of his honest 

services.”). See also Langford, 647 F.3d 1309 at 1321–22. We do not read these decisions so 

broadly. These cases did not involve a “mere failure to disclose a conflict of interest.” See

Skilling, 130 S. Ct. at 2932. Rather, all of these cases, like the instant case, involved public 

officials who solicited or accepted bribes or kickbacks—“classic honest services fraud that 

existed before, and after, Skilling.” See Langford, 647 F.3d at 1322 n 9. 

16 Nelson stresses that the evidence presented at trial established only that, as a member 

and chair of the JaxPort board, his official duties were to vote on certain contracts, none of which 

were involved in this case, and to appoint and provide long-term “vision and guidance” to the 

JaxPort’s chief executive officer. “[T]here was no evidence that [his] duties included any handson, day to day involvement in the running of [JaxPort].” 

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that he could not do himself is nonetheless acting in his official capacity. See

generally, Lopez-Lukis, 102 F.3d 1164 (11th Cir. 1997).17 It is the authority 

inherent in his position as a board member that has enabled him to exercise his 

influence in the first place, and he has a duty to exercise those powers honestly and 

in the organization’s interests, rather than his own. 

Finally, to the extent there is any doubt as to the meaning of §§ 1341, 1346, 

and 666(a)(1)(B) as applied to this case, we find that any potential vagueness in 

these provisions is mitigated by their scienter requirements. See Skilling, 130 S. 

Ct. at 2933; Benner, 442 Fed. App’x at 420. As noted above, due process does not 

require that criminal statutes speak with absolute clarity as to all possible 

applications. “The constitutionality of a vague statutory standard is closely related 

to whether that standard incorporates a requirement of mens rea.” United States v. 

 17 Lopez-Lukis involved a public official who accepted bribes in exchange for her vote 

and the use of her influence to secure a majority vote from other board members on those 

matters. See 102 F.2d at 1168. Considering these acts independently of one another, we 

observed:

The appellees concede that a county commissioner commits 

honest-services fraud when she sells her vote. It is no less a 

violation of sections 1341 and 1346, however, for that 

commissioner, in addition to selling her vote, to take steps to 

ensure that a majority of commissioners vote with her. In both 

scenarios, the commissioner deprives her constituents of their right 

to her honest services by deciding how to vote based on her own 

interests. The second scenario simply makes this deprivation more 

concrete. In addition to depriving her constituents of their right to 

her honest services, she seeks to ensure that the actions the Board 

takes are in her own bests interests instead of the best interest of 

the public.

102 F.2d at 1168 (internal citations omitted). 

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Waymer, 55 F.3d 564, 568 (11th Cir. 1995) (citing Colautti v. Franklin, 439 U.S. 

379, 395 (1979)). In this case, to convict Nelson for honest-services fraud, the 

Government had to prove that he “devised or intend[ed] to devise any scheme or 

artifice to [deprive another of the intangible right of honest services].” See 18 

U.S.C. § 1341, 1346. Likewise, to convict Nelson of federal funds bribery, the 

Government had to prove that he “corruptly” solicited or demanded something of 

value, “intending to be influenced or rewarded . . . .” 18 U.S.C. § 666(a)(1)(B). 

We are satisfied that, if in fact Nelson reasonably believed that his conduct was 

lawful, due to the nature of his role on the JaxPort board or for any other reason, 

the jury could have found that he did not have the intent required to commit these 

crimes.18 The jury did not. 

B. The Court’s Instructions to the Jury

Next, Nelson argues that we should vacate his mail fraud and federal funds 

bribery convictions because the manner in which the district court instructed the 

jury on these charges “failed to provide the jury with a means of discerning 

 18 Jury Instruction No. 21 provided that:

‘Good faith’ is a complete defense to a charge that requires intent 

to defraud. A defendant isn’t required to prove good faith. The 

Government most prove intent to defraud beyond a reasonable 

doubt. An honestly held opinion or an honestly held belief cannot 

be fraudulent intent—even if the opinion or belief is mistaken. 

Similarly, evidence of a mistake in judgment, an error in 

management, or carelessness can’t establish fraudulent intent.

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25

whether [he] took a bribe.” Nelson concedes that, because he did not raise this 

objection at trial, plain error review applies. See United States v. House, 684 F.3d 

1173, 1196 (11th Cir. 2012) (citing United States v. Felts, 579 F.3d 1341, 1343 

(11th Cir. 2009)). Thus, we will reverse his convictions only if the jury 

instructions, considered as a whole, “[were] so clearly erroneous as to result in a 

likelihood of a grave miscarriage of justice, or the error seriously affect[ed] the 

fairness, integrity, or public reputation of judicial proceedings.” United States v. 

Starke, 62 F.3d 1374, 1381 (11th Cir. 1995). 

Nelson cites to two points of error in the court’s instructions, both

concerning what he argues are “hopelessly circular” propositions on an “essential 

point of law”—i.e. what constitutes a “bribe.” First, Nelson argues that the court’s 

honest-services instruction was circular because the phrase “intent to defraud,” 

defined in the instruction as “act[ing] knowingly and with the specific intent to 

solicit, demand, or accept bribe payments,” conflated the statute’s mens rea

requirement with the underlying criminal conduct: bribery. Thus, Nelson argues, 

the jury was effectively instructed that “Nelson took a bribe if he had the intent to 

do so and he had the requisite intent if he in fact took a bribe.” As Nelson 

concedes, however, he specifically requested that the language “specific intent to 

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26

solicit, demand, or accept bribe payments” be included in the court’s instruction.19

Further, when the court asked Nelson’s attorney whether the instruction as finally 

written conformed to what he requested, Nelson’s attorney replied, “Yes, sir.”

Nelson cannot now complain about the circularity of an instruction that he, through 

counsel, requested and approved.

20 See United States v. Silvestri, 409 F.3d 1311, 

1337 (11th Cir. 2005) (“When a party responds to a court’s proposed jury 

instructions with the words ‘the instruction is acceptable to us,’ such action 

constitutes invited error.”).

Nelson’s second argument is similarly unavailing. According to Nelson, 

because the court’s instructions provided that corrupt intent is an element of both 

honest-services fraud and federal funds bribery, and because the term “corruptly”

was defined therein as requiring the jury to find that Nelson intended to act 

 19 Our pattern instruction for §§ 1341 and 1346 defines the phrase “intent to defraud” as 

meaning “to act knowingly and with the specific intent to deceive someone, usually for personal 

financial gain or to cause financial loss to someone else.” See Eleventh Circuit Pattern Jury 

Instructions (Criminal Cases), Basic Instruction 50.2 (2010). Maintaining that this “garden 

variety” definition is not suitable for cases that do not involve traditional deception, such as the 

instant case, Nelson’s attorney asked the court to strike all of the language following “specific 

intent to” and replace it with “solicit, demand, or accept bribe payments.”

The court obliged.

20 Nelson now claims that the only reason he requested this definition was “to insure that 

simple concealment would not be grounds for conviction.” Be that as it may, whether Nelson

had good reason to request the instruction does not change the fact that any resulting confusion 

was a product of his own doing.

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“unlawfully,”21 the jury was effectively instructed that Nelson “act[ed] ‘corruptly’ 

[if] his conduct [was] unlawful and his conduct [was] unlawful if he act[ed] 

corruptly.” The net effect of this error, Nelson maintains, was to “propel[] the jury 

to look elsewhere to determine whether [he] engaged in culpable conduct and to 

engage in subjective individual judgments unmoored from any coherent legal 

standard.” 

We disagree. The court’s definition of “corruptly,” adopted verbatim from 

our pattern instruction for federal funds bribery, did not merely instruct the jury 

that Nelson “act[ed] ‘corruptly’ [if] his conduct [was] unlawful,” but rather, it 

required—correctly—that the jury find that Nelson voluntarily and deliberately

engaged in unlawful conduct. See Eleventh Circuit Pattern Jury Instructions 

(Criminal Cases), Basic Instruction 24.2 (2010). In other words, Nelson had to 

know that accepting payments from SSI in exchange for representing the 

company’s interests at JaxPort was something that the law forbids. The jury was 

thus propelled to look to Nelson’s state of mind in joining the conspiracy—a task 

that, as noted above, the jury was equipped to take on. 

In any event, even to the extent that the court’s instructions may be 

considered to contain a degree of circularity, we are not left with “substantial and 

 21 The term “corruptly” was defined in the federal funds bribery instruction as acting 

“voluntarily, deliberately and dishonestly to either accomplish an unlawful end or result or to use 

an unlawful method or means or result.” The term was not defined in the honest-services 

instruction. 

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ineradicable doubt as to whether the jury was properly guided in its deliberations.” 

See United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir. 1996). On the whole, 

the instructions “accurately express the law applicable to the case.” See id. And,

as other circuits have observed, the term “corruptly” has a commonly understood 

meaning. See United States v. McElroy, 910 F.2d 1016, 1021 (“The term 

‘corruptly’ is ordinarily understood as referring to acts done voluntarily and 

intentionally and with the bad purpose of accomplishing either an unlawful end or 

result, or a lawful end or result by some unlawful method or means.”) (internal 

quotation marks omitted); United States v. Pommerening, 500 F.2d 92, 97 (10th 

Cir. 1974) (The “words ‘corruptly’, ‘value’, and ‘influence’ are applied in their 

ordinary, everyday sense. It is obvious from reading [18 U.S.C. §] 201(b) that 

Congress intended to prohibit individuals from giving government employees, 

while they are acting in their official capacity, compensation in return for special 

favors.”). We therefore decline to reverse Nelson’s convictions merely because 

isolated clauses of the jury instruction may be “confusing, technically imperfect, or 

otherwise subject to criticism.” Beasley, 72 F.3d at 1525. 

C. The Testimony of Louis Naranjo

Finally, Nelson argues that the district court erred under Rule 403 of the 

Federal Rules of Evidence in admitting the testimony of JaxPort’s director of 

procurement, Louis Naranjo, who testified regarding a meeting he had with Nelson 

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before the alleged conspiracy. Rule 403 permits a trial judge to exclude otherwise 

relevant evidence if its probative value is substantially outweighed by the danger 

of unfair prejudice. The court’s authority should be used sparingly, however, as

“the balance under Rule 403 should be struck in favor of admissibility.” United 

States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989). Similarly, on appeal, we 

“look at the evidence in a light most favorable to its admission, maximizing its 

probative value and minimizing its undue prejudicial impact.” Id. Only upon a 

clear showing of abuse of discretion will we reverse a trial court’s evidentiary 

ruling. See United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009). 

“[W]e must affirm unless we find that the district court has made a clear error of 

judgment, or has applied the wrong legal standard.” United States v. Frazier, 387 

F.3d 1244, 1259 (11th Cir. 2004) (en banc).

As explained above, the testimony at issue pertained to a November 2005 

meeting wherein Nelson, in the presence of JaxPort’s CFO, Ron Baker, 

complained to Naranjo about JaxPort’s dredging contractor, SeaTech, and asked 

Naranjo to cancel JaxPort’s contract with the company. According to Young, 

Nelson also suggested that SSI was “ready to go.” Nelson objected to the 

admission of this testimony at trial, but the district court, following a proffer 

examination of the witness, concluded that Naranjo’s testimony would not be 

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30

unfairly prejudicial. The district court later reaffirmed this ruling when denying 

Nelson’s motion for a new trial. 

On appeal, Nelson argues that, by admitting Naranjo’s testimony, the district 

court “invited the jury to convict [him] on the basis of uncharged conduct.” 

Specifically, Nelson highlights the fact that the events described in Naranjo’s

testimony took place almost a full year before Nelson and Young’s alleged

conspiracy. Nelson also stresses that, in the broader context of the Government’s 

case, Naranjo’s testimony “stood alone as a dramatic instance of Nelson pressuring 

a [JaxPort] staff member in apparent support of SSI.” Nelson argues that “[t]here 

was no evidence of similar conduct during the course of the conspiracy.” 

On balance, and in light of the principles described above, we do not find 

that the district court abused its discretion in allowing Naranjo’s testimony. 

Although Naranjo’s testimony related to conduct that preceded the conspiracy 

alleged in the indictment, it was unquestionably probative as to a number of issues

bearing upon Nelson’s guilt. For example, Naranjo’s testimony corroborated and 

gave context to Young’s testimony that, in asking to be “put on the payroll,” 

Nelson told Young that he was already doing “twice as much” for SSI as Forentino 

was doing. Likewise, Naranjo’s testimony illustrated how and to what degree 

Nelson was capable of exercising influence over JaxPort staff—particularly its 

CFO, Ron Baker, who arranged the meeting between Nelson and Naranjo. Thus, 

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the jury might have reasonably inferred from Naranjo’s testimony that, at the time 

of the conspiracy, Nelson believed that his meeting with Baker and Naranjo was 

illustrative of the type of favors that he was willing and able to offer SSI in 

exchange for bribe payments. 

At the same time, however, Naranjo’s testimony was not necessarily 

prejudicial to Nelson’s case, as other inferences could be drawn from the 

November 2005 meeting. As recognized by the district court, Naranjo’s crossexamination of Naranjo highlighted various issues related to SeaTech’s 

performance from which the jury might have reasonably inferred that “Nelson was 

doing everybody a favor by suggesting that SeaTech be terminated.” This 

conclusion lends support to Nelson’s theory of the case—namely, that, in 

representing SSI’s interests at JaxPort, he was never in violation of his fiduciary 

obligations to the board or to the public. 

Accordingly, we find that the district court did not make a clear error of 

judgment or apply the wrong legal standard in admitting Naranjo’s testimony.

III.

For the foregoing reasons, the judgment of the district court is AFFIRMED. 

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WILSON, Circuit Judge, concurring:

The dissent may well be correct that the investigation of Nelson began with 

a pre-Skilling theory of criminal concealment. And if the Government’s case 

rested only on Nelson’s nondisclosure of the SSI payments, then I would be 

inclined to agree with the dissent that no crime within the meaning of § 1346 

occurred. Skilling definitively foreclosed the possibility that honest services fraud 

could criminalize undisclosed conflicts of interest. But the record shows that 

Nelson did not merely hide a business relationship—he hid payments that were 

intended to influence his actions as the chairman of JaxPort. It should come as no 

surprise that bribes are often concealed. Nelson’s concealment was not the crime; 

it was merely a symptom. 

I am also unpersuaded that Young’s payments to Nelson were not bribes 

because they were “permitted.” Permitted by whom? Nelson points to two 

grounds: the rubber stamp of Jacksonville’s General Counsel Cindy Laquidara, and 

the fact that Nelson refrained from voting on SSI matters. For starters, a 

municipality’s legal opinion hardly binds the Justice Department or this court. 

More importantly, Laquidara based her opinion on a mere fraction of the truth, 

because Nelson only revealed to her that he had submitted a joint bid with SSI to 

the United States Army Corps of Engineers. He did not reveal the most important 

information: he was on SSI’s payroll as a lobbyist. 

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Nelson’s only remaining justification is that he recused himself from voting 

on matters involving SSI. This presumably stems from section 112.3143(3)(a) of 

the Florida Statutes, which provides that no “public officer shall vote in an official 

capacity upon any measure . . . which he or she knows would inure to the special 

private gain or loss of any principal by whom he or she is retained.” Although this 

argument must undoubtedly fail, it reveals that Nelson is likely as much a victim of 

circumstance as his own cupidity. Nelson seems to have been under the 

impression that as long as he recused himself, he could accept any payment that 

came his way. 

Yet it cannot be the case that public officials are immune from the federal 

corruption laws simply because they refrain from voting “yea” or “nay,” for the 

simple fact that it cannot be seriously contended that Nelson’s influence on the 

board was limited to voting. The record contained numerous instances of Nelson 

exerting influence on SSI’s behalf. Although we have not decided if bribery in the 

honest services context requires a showing of quid pro quo, even assuming that it 

does, this case obviously meets that standard. See United States v. Siegelman, 640 

F.3d 1159, 1173–74 (11th Cir. 2011), cert. denied, 132 S. Ct. 2711 (2012). For 

example, Young testified that he asked for, and received, Nelson’s help in 

obtaining a change order’s approval that added almost $150,000 of work to SSI’s 

contract. Young also testified that he understood his payments to Nelson to be 

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34

bribes. There was more than enough evidence for a jury to find that Nelson 

knowingly accepted payments that were intended to influence his acts as a public 

official.

It is unfortunate that it appears to have been routine for JaxPort board 

members to lobby for companies that routinely brought business before it. It is 

entirely conceivable that Nelson became swept up in what was the standard 

operating procedure for the board’s unpaid, part-time members. The dissent points 

out that Fiorentino, a fellow board member and lobbyist, was “innocent” simply 

because he did not conceal his financial relationship with Young. I must agree 

that I am unable on this record to discern a difference between Fiorentino’s 

conduct and Nelson’s. But Fiorentino’s lack of a conviction does not 

automatically gut Nelson’s. For whatever reason, the Government opted not to 

pursue Fiorentino, and the Court has no authority—absent very unusual 

circumstances—to interfere with the exercise of the prosecutor’s charging 

discretion.

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35

HILL, J., dissenting:

Tony Nelson concealed his financial relationship with SSI from JaxPort. 

This was not a crime. The investigation of him and the indictment against him, 

however, were instigated at a time when such concealment was thought by all to be 

a crime. After Skilling, we know that it never was. Nelson’s concealment of a 

financial interest in SSI was not a violation of his fiduciary duty to JaxPort. It did 

not deprive JaxPort of his honest services.1

Nevertheless, Nelson was convicted of honest services fraud. The evidence 

was that he was told that, as a part-time, unpaid member of JaxPort Board, he 

could lawfully advocate on behalf of SSI – as a paid lobbyist, just as was 

Fiorentino – and he did so. The evidence was that he was told he could not vote on

any matter involving SSI and that he did not do so. 2

 

 1 During the time of misapprehension by many that concealment would be criminal, FBI agents 

made an early-morning, unannounced call on Nelson at his home. One agent questioned him and 

another made notes. During the meeting, Nelson admitted that he had not told JaxPort of his 

relationship with SSI. This concealment would have been seen as enough for a prosecution at 

the time. Thereafter, Skilling was decided; the prosecution became one for bribery.

2 I am troubled by the concurrence’s reference to Jacksonville General Counsel’s advice to 

Nelson that he was permitted to be a paid lobbyist for SSI so long as he did not vote as a “rubber 

stamp” opinion. The reference implies that there was something wrong or lacking in the opinion 

and there is no evidence in the record to support such an inference. Furthermore, if Nelson was 

not entitled to rely on Jacksonville’s rules – as interpreted by its own lawyer and regarding its 

own entity – to guard that his behavior was not in violation of those rules, then how is any local 

official safe from federal prosecution based on its own interpretation of those rules.

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36

The evidence was that no economic harm befell JaxPort as the result of Nelson’s 

lobbying for SSI.3

So the question becomes, where is the crime here? The only difference that 

I can see between what the government says is the innocent conduct of Fiorentino

and the guilty conduct of Nelson is that Nelson concealed his relationship with 

SSI. This is not a crime. Skilling flatly rejects such a theory of honest services 

fraud.

The majority opinion correctly states that in order to be guilty of honest 

services fraud, the jury had to find that “Nelson voluntarily and deliberately 

engaged in unlawful conduct.” But then it goes on to say that “Nelson had to know 

that accepting payments from SSI in exchange for representing the company’s 

interest at JaxPort was something that the law forbids.” But this is not so. The law 

did not forbid Nelson from representing SSI’s interests – only from voting on any 

matter affecting them, which he did not do.

So, once again – where is the crime here? 

As a result of Skilling, I believe that a financial concealment case morphed 

into a bribery prosecution. The only remaining problem – but a pretty significant 

one – was that Nelson had been told that he could accept payment from SSI to 

 3 The concurrence notes that Nelson helped SSI get a change order. This is no evidence of 

wrongdoing – the testimony was that SSI was due the change order and the additional payment. 

Nelson’s conduct in assisting SSI to get the change order, therefore, could not be a violation of 

his duty to JaxPort. 

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37

advocate on its behalf in connection with the JaxPort. His agreement with SSI to 

do so – and to receive payment for doing so4 – cannot be a bribe if it is permitted. 

Therefore, the government’s theory became that the concealment of his financial 

relationship – although not a crime in itself – was evidence that Nelson’s intent in 

accepting payment was corrupt, making otherwise legal payments illegal – a bribe.

There are two problems with this theory. The first is a legal objection and 

the second a failure of proof.

First, the government failed to prove Nelson had a corrupt intent to be 

bribed. The government proved only that Nelson sought to conceal his relationship 

with SSI – not why. Contrary to the majority opinion, the government did not 

prove that Nelson thought what he was doing was illegal. The word “bribery” does 

not appear anywhere in the FBI agent’s notes of her interviews with Nelson. She 

admitted at trial that those notes contain Nelson’s statement that he “now” knows 

that the payments were “wrong.”5

 The word “now” was underlined three times by 

the agent. Clearly Nelson sought to hide the SSI payments. I do not know why. 

But neither does anyone else – least of all the jury. Perhaps tax evasion was his 

motive. That is a crime; just not the crime charged here.

 4 It should be noted, I think, that Nelson received payment monthly whether he accomplished 

anything or not.

5 The concurrence notes that Young testified that he thought the payments were bribes, but 

Young’s mens rea cannot be used to convict Nelson.

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Second, and more importantly, concealment alone is legally insufficient to 

prove Nelson had corrupt intent to be bribed. If Nelson had no duty to disclose his 

financial relationship with SSI, as Skilling says, and the payments were permitted, 

as he was told, then the jury was not permitted to infer a corrupt intent to be bribed 

by his concealment. The government’s theory was that – although concealment is 

not a crime – it was evidence of corrupt intent and this mens rea turned lawful 

lobbying into unlawful bribery. I disagree. Bribery requires a corrupt agreement 

to perform an unlawful official act – an actus reus. In this case, Nelson agreed to 

perform a lawful act. The lobbying was permitted. An agreement to perform a 

lawful act is called a contract, not bribery. Even if the government had proved a 

mens rea, I don’t believe that it proved an actus reus in this case. 

In my view, the jury instructions in this case were fatally defective. The jury 

was instructed that Nelson had a duty to JaxPort, the existence of which is an 

essential element of the crime of honest services fraud. But they were never 

enlightened as to the nature and limits of this duty. The unique circumstance of 

this case – that Nelson was a part-time, unpaid member of the board, fully entitled 

to lobby JaxPort on behalf of SSI and to be paid for those efforts – required that the 

jury be carefully instructed as to the limits of his duty to JaxPort. That was not 

done. If it had, maybe he would have been acquitted.

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Nor did the instructions require the jury to find any corrupt intent apart from 

Nelson’s concealment of his relationship with SSI. If his acceptance of payment 

was not unlawful, then the only evidence upon which the jury could have 

concluded that he had a corrupt intent in accepting them was that he concealed 

them. But we know that concealment cannot be the crime here.

The majority says that if these instructions were error, the error was not 

plain. I disagree. Failure to adequately instruct the jury on the scope of Nelson’s 

duty to JaxPort – an essential element of the crime of honest services fraud – and 

the necessity to find a violation of that duty is fatal to the verdict. Failure of the 

instructions to require the jury to find that he had a corrupt intent – apart from his 

concealment of a financial interest in SSI – was also fatal to the verdict.

For these reasons, I respectfully dissent.

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