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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

07-11476-E
___________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

vs.

JACK W. SWANN, et al., Defendants-Appellants.

___________________________________

07-11644-E
___________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee

vs.

BOBBY J. RAST, et al., Defendants-Appellants


___________________________________

On Appeal from the United States District Court


for the Northern District of Alabama
___________________________________

REPLY BRIEF OF APPELLANTS FLOYD W. “PAT” DOUGHERTY


AND F.W. DOUGHERTY ENGINEERING & ASSOCIATES, INC.
___________________________________

J. Stephen Salter Sam Heldman


1330 21st Way South The Gardner Firm
Suite 100 2805 31st St. NW
Birmingham AL 35205 Washington DC 20008
(205) 585-1776 (202) 965-8884
Table of Contents

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Statement Regarding Adoption of Briefs of Other Parties . . . . . . . . . . . . iii

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. A charge under 18 U.S.C. § 666 requires proof of intent to influence


or reward some specific act, business, transaction or series of
transactions, rather than merely proof of something more vague and
generalized; with that as the governing legal standard, there must be
a judgment of acquittal or at least a new trial. . . . . . . . . . . . . . . 1

2. The Government did not prove, in either case, that Dougherty and
FWDE conspired to violate 18 U.S.C. § 666 as charged. . . . . . . . . 8

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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Table of Authorities

Sabri v. U.S., 541 U.S. 600, 124 S.Ct. 1941 (2000) . . . . . . . . . . . . . . . 7

U.S. v. Hines, 541 F.3d 833 (8th Cir. 2008) . . . . . . . . . . . . . . . . . . 3-4

U.S. v. Parker, 839 F.2d 1473 (11th Cir. 1988) . . . . . . . . . . . . . . . . . 13

18 U.S.C. § 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

18 U.S.C. § 666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

ii
Statement Regarding Adoption of Other Parties’ Briefs

As we did regarding the opening briefs, Dougherty and FWDE adopt all

portions of the reply briefs of the other appellants, except for any portion that is

plainly inapplicable to these appellants (such as arguments pertaining to counts of

the indictment that did not involve these appellants). It is not possible to be more

precise than this, since other appellants’ reply briefs have not yet been filed or

finalized at the time this brief is being filed.

In particular, but without limitation, these appellants continue to adopt all

arguments pertaining to the charges under 18 U.S.C. § 666 and the conspiracy

charges that involved these appellants, as well as arguments about the erroneous

introduction of evidence under Fed. R. Evid. 404(b) and 403.

iii
Argument

Having adopted the arguments of other appellants (see Dougherty Opening

Brief p. v; see also this brief supra, p. iii), appellants Floyd “Pat” Dougherty

(Dougherty) and F. W. Dougherty Engineering & Associates, Inc. (FWDE) will

confine this reply brief to a few specific points.

1. A charge under 18 U.S.C. § 666 requires proof of intent to influence or


reward some specific act or acts, rather than merely proof of something
more vague and generalized.

We showed in our opening brief that the best interpretation of 18 U.S.C. §§

666(a)(1)(B) and (a)(2) is that the Government must prove, beyond a reasonable

doubt, the intent to influence or reward some identifiable act or acts. (Dougherty

Opening Brief pp. 22-29). A mere intent to generate influence that might be useful

someday is not enough.

In response, the Government does not claim that the conviction can be

upheld if we are right about this issue of law. The Government does not claim that

the evidence was sufficient to prove guilt beyond a reasonable doubt, if we are

right about this issue of law. The Government also does not claim that the jury

instructions were adequate, if we are right about this issue of law.

The Government does not even claim, for instance, that it proved an intent to

influence or reward a set of acts that would be defined to include all contracting

decisions pertaining to the Jefferson County sewer system. We anticipated that the
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Government might so argue (Dougherty opening brief p. 25), and we showed that

such an argument would be wrong. The Government implicitly concedes the

point, by not making the argument that we anticipated. Again, the Government

does not contend that it proved that Dougherty or FWDE had the intent to

influence or reward either a particular act or an identifiable set of acts.

Instead the Government’s position is that the law does not require it to prove

such a thing. (E.g., Gov’t Brief p. 48 (arguing that § 666 is satisfied by proof of

“[s]chemes … which put public officials on retainer so they act favorably when

opportunities arise”); p. 62 (arguing that § 666 does “not require ‘proof of the

intent to influence or reward something identifiable and particularized.’”); id. pp.

62-63 (arguing that the statute covers payments made merely in order to generate

influence that might be useful on some unknown future occasion)).

In our opening brief we pointed out one strong textual reason why the Court

should interpret the statute as we do, and should reject the Government’s position.

(Dougherty Opening Brief, p. 24). That textual reason is based on the portion of

subsections a(1)(B) and (a)(2) underlined below:

(B) corruptly solicits or demands for the benefit of any person, or


accepts or agrees to accept, anything of value from any person,
intending to be influenced or rewarded in connection with any
business, transaction, or series of transactions of such organization,
government, or agency involving any thing of value of $5,000 or
more; or

(2) corruptly gives, offers, or agrees to give anything of value to any


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person, with intent to influence or reward an agent of an organization
or of a State, local or Indian tribal government, or any agency thereof,
in connection with any business, transaction, or series of transactions
of such organization, government, or agency involving anything of
value of $5,000 or more;

As a matter of grammar, that adjectival phrase, “involving anything of value of

$5,000 or more,” modifies the nouns “business, transaction, or series of

transactions.” It plainly requires proof beyond a reasonable doubt that the

“business, transaction or series of transactions,” in connection with which the

defendant intended to influence or reward, involved something of value equal to or

greater than $5,000. As we said in our opening brief,

That monetary floor, by its very nature, has to have reference to some
identifiable thing – such as a specific governmental contract – or else
is poses a question that can never be answered. If (as the Government
and District Court would have it) there can be a violation of § 666
arising from a payment that is intended to secure influence not over a
specific governmental decision but instead just to have influence in
reserve, just in case it might be useful to have influence at some
unknown future point – then how could one prove that the at-least-
$5000 element was met?

(Dougherty Opening Brief, p. 24).

The Government’s only response to this argument is extremely brief and

weak. The entire substantive content of the Government’s response to this strong

textual argument is one sentence and one citation in a footnote:

That statutory minimum requires no particular precision and can be


met by aggregating value over time. See United States v. Hines, 541
F.3d 833, 837 (8th Cir. 2008).

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(Gov’t Brief p. 54 n. 29). But this is no response whatsoever to the strong textual

point that we were making. It may well be true, as the Government says, that the

statutory minimum does not require precision in the valuation; but still there must

be something that is the subject of the valuation. The valuation can be a best

estimate, perhaps, but still it has to be the valuation of some thing or set of things.

Hines does not say otherwise. It may well be true that the value can be aggregated

over time, where the proven intent was to influence or reward multiple acts (Hines

itself being that sort of case); but still there must be an identification of what those

intended-to-be-influenced-or-rewarded acts were, before the process of valuation

can even get started. It is impossible to place a value on something, or group of

things, that is not identified. Hines does not say otherwise.

Thus the Government has offered no logical and relevant argument, of a sort

that would actually have any force against the textual argument that we advanced.

The statute requires proof of the value of the thing(s) that were intended to be

influenced or rewarded. Given that, the statute cannot possibly cover the intent to

generate influence just in case it might be useful in some as yet unknown, or

unidentified, future contingency. The Government cannot answer this point.1

1
Again the Government does not seek to meet this argument by pointing to a
contract or series of contracts that added up to more than $5,000, and contending
that it proved beyond a reasonable doubt that Dougherty and FWDE intended to
influence or reward in connection with all of them in aggregate. The Government
is insistent instead that it does not have to bear that burden, that it can keep things
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The Government finds this argument so inconvenient, and so impossible to

answer, that the Government often resorts to omitting the inconvenient part of the

statute. Even when the Government claims that the plain language of the statute

supports its view, the Government carefully paraphrases the language of the statute

by omitting the $5,000 floor. (Gov’t Brief p. 64 (“Thus, under Section 666 the

courts have concluded that the intent – or quid pro quo – element is exactly what

the express language of the statute says: a corrupt intent to influence or reward a

government employee in connection with any business or transaction of the

government agency.”); p. 67 (again arguing that the Government had only to prove

“a corrupt intent to be influenced or rewarded, in connection with any business of

that agency,” again omitting the $5,000 clause of the statute); p. 48 (similar

argument, made by quoting the statute in part but stopping abruptly so as to omit

the $5,000 clause)). A “plain language” argument that depends on omitting part of

the “plain language” of the statute, we submit, is not much of a “plain language”

argument at all. But that is the position that the Government is in; it is asking the

Court to join it in ignoring part of the statute. This Court should not do that. Even

if it means disagreeing with some other court that has rejected our position, this

Court should not adopt an interpretation that depends on ignoring part of the text of

the statute.

looser and more vague than that, and that it can obtain a conviction without
pointing to what was supposedly to be influenced or rewarded.
5
In addition to the textual argument based on the valuation clause, we also

made another strong argument to which the Government has no answer. This is

the argument that uses core principles of federalism, or principles about the

relationship of the federal and state governments, as a clue to interpretation.

(Dougherty Opening Brief, pp. 26-28). We pointed out that a similar statute

applicable to federal government officials, 18 U.S.C. § 201, requires proof of an

connection between the thing of value given to the official, and an identifiable act

by the official. Yet the Government asks this Court to hold that in § 666 the

Congress has imposed a stricter rule on state and local officials whose agencies

receive federal funds, than the Congress has imposed on federal officials. Such a

legislative choice would be so odd, so fundamentally in conflict with the basic

framework of our national government, that the Court should reject it. If the

statute’s words clearly demanded such an odd rule, a rule under which state and

local officials can be put in federal prison for things that federal officials do with

impunity, then that would be a different matter. But since the statute’s words do

not clearly demand such an odd rule, this Court should not create it; this Court

should instead interpret § 666 to be in harmony with § 201.

Responding to all defendants’ arguments about § 201, the Government

discusses the origin and drafting of § 666 as an effort to extend federal anti-

corruption norms to state and local officials whose agencies receive federal funds.

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(Government Brief, pp. 57-60). True enough, but this argument is completely

unresponsive to the point that we made in our opening brief. If the Congress wants

to impose stricter standards on local and state officials than on federal ones, the

Congress should say so unmistakably.

The Government quotes (Gov’t Brief p. 61) a brief passage from Sabri v.

U.S., 541 U.S. 600, 124 S.Ct. 1941 (2000), that used the phrase “general retainers”

in a discussion of § 666. But Sabri was not about the question involved in this

case, and does not answer the question presented here. Sabri was about a

completely different question: whether there had to be a “nexus” between the

federal funds that are the jurisdictional predicate for the statute, and the bribe. A

stray sentence from Sabri cannot even be taken as dictum about, much less as a

pronouncement on, the entirely different question presented here.

An attention to the limits of criminal statutes as written, rather than a loose

interpretation of them in order to punish all who seem to have done something

improper, is the hallmark of our legal system. The question is not whether the

Government proved intentions, or actions, that are ethically improper in the eyes of

the Court or the prosecutors or the public. The question is whether the

Government proved that these defendants violated the particular law that Congress

wrote. That is where the Government failed. For these reasons, as well as those

reasons explained in the other briefs before the Court, the Court should render a

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judgment of acquittal for Dougherty and FWDE, or should at least reverse the

convictions and remand for a new trial with proper jury instructions.

2. The Government did not prove that Dougherty and FWDE conspired to
violate 18 U.S.C. § 666 as charged.

We also showed (Dougherty Opening Brief pp. 17-22) that, even beyond this

legal issue about the required elements of proof under § 666, the Government

certainly failed to prove that Dougherty and FWDE conspired to violate that

statute as charged in Counts 1 and 51. We showed that there was no proof, and

nothing more than speculation, that the various defendants had a mutually known

and shared intent to violate § 666. True enough, the private-sector defendants

worked together on construction jobs, at the Swann house and the McNair studio.

But did Dougherty and FWDE know what intent the others harbored as to why they

were doing that work, did they know that the others had the intent that § 666

proscribes, and did Dougherty and FWDE agree with the others that they would

work together to pursue such intent? This is where the proof was entirely absent.

In response, the Government claims to have met its burden of proof on the

conspiracy charges. (Gov’t Brief pp. 101-08). But the Government’s claim is

based first on an avoidance of the core issue – and then, beyond that, on conjecture

rather than evidence or reasonable inference.

The Government’s avoidance of the core issue is its pretense that there are

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only two possibilities: (a) that the defendants all agreed to engage in construction

projects that were, from the perspective of each of them, entirely innocent; or (b)

that they were all acting in a conspiracy to violate § 666. The Government argues

that the evidence would allow the rejection of (a) and therefore that it would allow

the acceptance of (b). But the Government thereby tries to set itself an easier task

than the law demands, by omitting the third possibility: (c) that even if some or

even all of the defendants had the intent that § 666 proscribes, still the Government

failed to prove that they mutually agreed to pursue that intent together. “Entirely

innocent” and “guilty of conspiracy” are not the only possibilities.

In other words, even if some or all the defendants were guilty of the

substantive § 666 charges, that does not mean that they or their co-defendants were

also guilty of conspiring with each other to violate § 666. To go beyond

conviction on the substantive counts, and to get a valid conviction on the

conspiracy counts as well, the Government had to prove the added point of a

shared intent – “shared” not just in the sense that each of the defendants harbored

the intent secretly within himself, but actually “shared” in the sense that they each

knew that the others harbored that intent, and that they agreed to work together

towards that unlawful end. If this Court does not insist on that extra element of

proof, then the difference between substantive crime and conspiracy will have

collapsed. “Conspiracy” would then be nothing more than a prosecutorial tool to

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gain a trial advantage, rather than being a separate criminal offense. This Court

should scrupulously insist on proof of conspiracy, where that crime is charged,

beyond the evidence that would suffice for proof of the underlying substantive

crime.2

And as we showed in our opening brief, there is no proof beyond a

reasonable doubt that Dougherty or FWDE agreed with others on the goal of doing

what § 666 prohibits. There is no evidence that they knew that others had that

goal, and no evidence that others knew that Dougherty or FWDE had it. The

evidence shows only that the various defendants worked together on construction

projects, with each one’s intent being (as far as the evidence shows) a thing that the

others neither knew or cared about.

As to the work on Swann’s house, the Government gives its sufficiency of

the evidence argument on the conspiracy charge at pp. 106-07 of its brief. But the

Government cites no evidence at all that Dougherty or FWDE knew anything

about why the other defendants were doing the work. The Government also cites

2
As we have discussed above and in our opening brief, the Government did not
prove that Dougherty and FWDE harbored the particular intent that § 666
proscribes. If the Court agrees, then their convictions on the conspiracy count will
easily fall as well; the Government makes no argument that the conspiracy
convictions can survive if the § 666 convictions fall. That is why this argument
about conspiracy is primarily focused on an argument that would knock out the
conspiracy charges even if the § 666 convictions were affirmed. So, obviously,
nothing we say herein should be taken as an admission that Dougherty or FWDE
harbored, in themselves, the intent that § 666 prohibits.
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no evidence that Dougherty or FWDE knew of any attempts by any other

defendants to hide work or expenses on the Swann project; and the Government

cites no evidence that Dougherty or FWDE knew of what financial arrangements

the other construction defendants had with Swann. Literally all that is shown by

the Government’s description, in terms of an alleged conspiracy by these

defendants at the Swann site, is that construction was going on, with no evidence

whatsoever of any shared criminal intent. This is not enough to support the

conviction on Count 51, the conspiracy charge in the Swann trial. That conviction

should therefore be vacated, at the very least.

As to the work on McNair’s studio in the Rast trial, the Government relies

very heavily (Gov’t Brief, pp. 102-05) on evidence that some materials used in

construction of the studio were charged to Jefferson County sewer projects. But

this will not substitute for proof of a conspiracy to violate § 666.

First of all, the Government does not even claim that Dougherty – the

individual – knew of any such conduct by other companies. So this is no evidence

of a conspiracy by him, and his conviction on this count must surely fall since he is

not part of the evidence on which the Government relies. Indeed, in the

Government’s argument about the sufficiency of the evidence on the McNair

conspiracy charge (Gov’t Brief, pp. 102-05), there is no mention of Dougherty the

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individual.3 He is therefore undoubtedly entitled to a judgment of acquittal on

Count 1.

Second, even as to FWDE – the corporation – the Government still has not

met its burden of proving a conspiracy to violate § 666 in the McNair construction.

If some materials used in building McNair’s studio were charged to the County,

that still does not convert into an intent to influence or reward McNair; the

inference simply does not follow at all. The Government tries to analogize this to

an attempt by defendants to “hide” what they were doing, on the theory that efforts

to hide one’s behavior can constitute evidence of a conspiracy. But the analogy

does not work. The construction work at McNair’s studio was not “hidden” in the

least; the defendants were doing it openly in public. Billing the materials to one

place versus another did not “hide” anything, in any sense that is meaningful to

proof of a conspiracy. Intending to influence or reward McNair was the

conspiracy that the Government charged, and that it had to prove. Other wrongs,

civil or potentially even criminal, are not the same as that charged object of the

conspiracy. Here again, the Government is trying to avoid its burden of proving a

3
In the Government’s sufficiency argument as to the alleged Swann conspiracy,
the only mention of Dougherty the individual is the assertion (Gov’t Brief p. 106)
that he sent FWDE employees to work on the Swann house and then visited the
site. There is no suggestion of any other proof that Dougherty the individual
conspired with anyone else. This is surely not enough for a conviction on this
conspiracy charge; it is no evidence that Dougherty had an agreement with the
other defendants to violate § 666.
12
conspiracy to violate § 666(a)(1)(B) and (2), by focusing instead on a more general

effort to prove impropriety in a generalized sense. This Court should not allow

that effort.

This Court has, in the past, reversed conspiracy convictions where the

Government has failed to prove the existence of an agreement among the

defendants to commit a crime together. See, e.g., U.S. v. Parker, 839 F.2d 1473

(11th Cir. 1988).4 This Court should reach that same conclusion in this case, and

should overturn the conspiracy convictions for lack of proof beyond a reasonable

doubt.

Conclusion

The Court should reverse or vacate the convictions, and should render a

judgment of acquittal, or at least order a new trial.

4
Parker, 839 F.2d at 1478: “The appellants certainly directed their efforts toward
the common goal of making money for themselves and their employer. But to
support a conspiracy conviction, the evidence must establish a common agreement
to violate the law. … While the evidence clearly shows that the law was violated,
there is insufficient evidence of a common agreement. Without evidence showing
or tending to show a meeting of the minds to commit an unlawful act, the
convictions cannot stand.”
13
Respectfully submitted,

____________________________
J. Stephen Salter Sam Heldman
1330 21st Way South The Gardner Firm
Suite 100 2805 31st St. NW
Birmingham AL 35205 Washington DC 20008
(205) 585-1776 (202) 965-8884

Certificate of Compliance

The foregoing was prepared in Times New Roman, 14 point, and contains
3,447 words according to the word-processing application that was used to prepare
it.

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Certificate of Service

I certify that copies of the foregoing have been served by U.S. Mail on the
following this ____ day of ______________, 2009, that on the same day the brief
has been uploaded electronically to the Court, and that an original and six copies
have been sent by U.S. Mail to the Clerk for filing.

Michael L. Brown William N. Clark


Alston & Bird, LLP Keith E. Brashier
1201 West Peachtree St. Gerald L. Miller
Atlanta GA 30309-3424 Redden, Mills & Clark
505 20th St. North, Ste. 940
David H. Flint Birmingham AL 35203-4658
Schreeder, Wheeler & Flint LLP
1100 Peachtree St. NE, Ste. 800 John J. Powers III
Atlanta GA 30309-4516 John P. Fonte
James J. Fredericks
Terry W. Gloor Kirsten C. Limarzi
Gloor & Strickland LLP U.S. Department of Justice
100 Williamsburg Office Park 950 Pennsylvania Ave. NW
Suite 100 Washington DC 20530
Birmingham AL 35216-3686
G. Douglas Jones
Janice Singer Anil A Mujumdar
3141 Maple Drive. NE Haskell Slaughter Young
Atlanta GA 30305-25023 & Rediker, LLC
1400 Park Place Tower
2001 Park Place North
Birmingham AL 35203

____________________________

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