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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA


ASHEVILLE DIVISION

UNITED STATES OF AMERICA, ) Crim. No. 1:19-cr-17-RJC


)
Plaintiff )
)
v. )
)
JOSEPH F. WISEMAN, JR., )
)
Defendant )
____________________________________)

SENTENCING MEMORANDUM AND MATERIALS


ON BEHALF OF JOSEPH F. WISEMAN, JR. 1

Now Comes Defendant, Joseph F. Wiseman, Jr., by and through his undersigned counsel,

and respectfully submits this Sentencing Memorandum and attachments, in support of a just and

appropriate sentence in this case. The sentencing hearing is scheduled for August 28, 2019.

I. HISTORY AND CHARACTERISTICS OF JOE WISEMAN

One of the principal factors the Court will consider in determining the appropriate sentence

in this case is the history and characteristics of Joseph F. Wiseman, Jr. Facts presented in the PSR,

the numerous, strong letters of support written on his behalf, 2 and even this memorandum cannot

fully tell the story of a man’s nearly sixty years on this earth. Our hope is that the combination of

those sources will allow the Court to place the crime Joe has admitted to committing in the larger

context of his otherwise law-abiding, hard-working, and honorable life to see the total picture of

the man.

1Joe Wiseman is the man who will be sentenced by the Court and therefore most of the references in this memorandu m
are to Joe personally. It is noted and recognized, however, that all of the contracts at issue with Buncombe County
were entered into in the name of Joe’s legally separate company, Environmental Infrastructure Consultants (“EIC”).

2 Those letters are attached as Exhibits to this Memorandum.

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So, who is Joe Wiseman? For anyone who knows him at all, let alone those who know

him well, he is the last man anyone would expect to be embroiled in a public corruption scandal.

In each of the 19 letters submitted in support for Joe, his family, friends, and former clients have

all expressed complete shock that Joe could have been involved in anything like this. To a person,

they describe Joe as a dedicated, humble, honorable, devoted family man that they have known

well, in many cases for more than 20 or 30 years. To Joe’s strong supporters, nothing could be

more out of character for Joe than for him to find himself in the position he is currently in.

Despite their knowledge of what he has admitted to doing here and that he has pleaded to

a federal felony, each of his supporters nonetheless still believe in the Joe that they have known,

loved and respected all of these years. A recurrent theme in these incredible letters is that Joe’s

life. his family, and his faith are so much bigger and better than this terrible mistake he has made,

and they have all pledged to love, forgive, and support him through and after this case is behind

them. If a man can be measured by the love and support that family, friends, and former colleagues

show you even in the face of humiliating failure and disgrace, then Joe Wiseman is one incredib ly

admired and loved man, even in these circumstances.

1. Regular Joe

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Joe is a Regular Joe. He is a quiet and unassuming civil engineer. He wears oversized

glasses to see and read. He wears orthopedic shoes because of a severe case of Type 2 diabetes,

which has already resulted in the amputation of one of his toes. 3 He speaks softly, is intellectua l

and deliberative, and he is slow to anger. And, at present, he is very afraid. 4

Joe is detail oriented. Throughout his career, Joe has been a meticulous engineer and

thorough record keeper. By his own nature and the nature of his profession, Joe likes getting in

the weeds. His analysis of issues and his answers to questions are thoughtful and thorough, as his

mind focuses on the various ways the question could implicate other issues.

Because of Joe’s meticulousness in keeping records and in analyzing and answering

questions, he has been (and still is being) of enormous assistance to the Government in

investigating this case and other matters, as set forth in greater detail herein.

Joe is intelligent and highly educated. Like his grandfather and father before him, Joe is

a licensed Professional Engineer, having received his civil engineering degree from Drexel

3 As the PSR notes, Joe has been receiving regular treatment since 2013 for his diabetes, high blood pressure, high
cholesterol, poor circulation, and neuropathy which adversely affects his balance. He also receives separate treatment
for frequent infections and ulcers in his feet stemming from the diabetes. He has developed Charcot foot, a deformity
in his foot, which is a direct result of the neuropathy in his feet and which acerbates his balance issues. One of Joe’s
biggest fears in being sentenced to prison is that he will not receive adequate care and will lose additional toes, a foot,
or perhaps even a leg before he is released. Accordingly, we believe it is imperative that Joe serve any prison sentence
imposed in a Bureau of Prisons facility with excellent medical resources, even if that facility is not one closer to his
home and family.
.
4 This last year has taken a huge toll on Joe and his family physically, emotionally, mentally, and financially. Once

the press learned that Joe was the “contractor” identified but not named in the Government’s August 2018 indictment,
they called his home incessantly and camped out on his doorstep in Atlanta, GA, where he resides with his wife and
then-16 year old daughter. They terrified his teenage daughter and harassed his friends and neighbors seeking
information long before the Government was prepared to bring any actual charge against him. His personal reputation
and integrity have been denigrated and his professional reputation has been irreparably tarnished. He received a
threatening phone call. And, most recently, he has had to go through the painful process of contacting friends and
associates to tell them that he has pled guilty to a federal crime, explain how that could have happened, and request a
letter that sheds some light on the man they knew him to be. The stress and strain on Joe’s immediate family has also
been tremendous, as they are repeatedly bombarded with questions about the nature and extent of Joe’s criminal
conduct. In addition to the Government’s criminal investigation, Joe has been sued by Buncombe County and he has
been directed to respond to inquiries from state licensing boards.

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University in Philadelphia, Pennsylvania in 1983. And, while working full-time with the

international engineering firm of Camp, Dresser & McKee (now CDM Smith, hereinafter

“CDM”), he earned a master’s degree in environmental engineering in 1987 and a Master of

Business Administration in Finance and Accounting in 1990, both from the University of North

Carolina at Chapel Hill.

Joe is a high achiever. He chose to begin his professional career at CDM in 1985 as an

entry level engineer, even though he could easily have joined his father’s engineering firm instead.

Through hard work and long hours, Joe rose to the level of vice-president in a very short time.

Because of his education and training in environmental engineering, he was assigned as part of the

team to work with Buncombe County on their landfill improvement project. In short order, Joe

became the senior engineer and Project Manager for CDM’s work in Buncombe County.

In 2006, Joe was asked to take over the management of CDM’s Atlanta office, which had

been in a downward spiral for some time. Joe reluctantly moved his family from Raleigh, North

Carolina to Atlanta, Georgia, where he found the CDM office in complete disarray. Many of the

senior engineers had left the firm, and there were few prospects for expanding the company’s

limited business given the crowded field of engineering firms in the Atlanta area. But in just a few

years, Joe was able to completely turn the office around. 5

Joe is humble. Despite his intelligence, education, and achievement, Joe is a very humble

and patient man. He and his family live a modest lifestyle grounded in family values and personal

responsibility, not material possessions. For example, Joe drives a 2006 Honda Pilot with over

5 Soon after Joe successfully saved the Atlanta CDM office, CDM nonetheless laid Joe off. Having served CDM

loyally for almost thirty years, Joe suddenly and unexpectedly found himself an unemployed fifty-year old man in the
worst job market in decades. He tried in vain to find employment with other companies. As the sole provider for his
family, these circumstances caused Joe significant stress and anxiety.

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300,000 miles on it. The vehicles he purchased for his wife and children are also modest makes

and have mileage of over 200,000 or more.

Joe has shown enormous patience throughout his life – as a father, with his clients, and

even with his counsel as we grappled with the facts and worked to understand the nature of Joe’s

profession and the contracts at issue in this case. He showed the same degree of patience and

humility as he educated the Government on the relevant facts and documents.

Joe is a devoted family man. Joe and his wife, Christie, have been married for almost

thirty years. They have three children, two adult sons and a teenage daughter. Both of Joe’s sons

played collegiate baseball at the Georgia Institute of Technology (“Georgia Tech”). His daughter,

who is a senior in high school, is a member of her school’s varsity volleyball team, seeking her

fourth varsity letter this fall. Joe regularly attended his sons’ baseball games and it is a rare

occasion when Joe misses the opportunity to watch his daughter play volleyball.

Every one of the letters submitted herewith to support Joe wax poetically about Joe’s

zealous devotion to his family. Both of his sons, Joseph and Patrick, credit their ability to graduate

with honors from Georgia Tech while playing varsity baseball there (together, no less) to their

father’s seemingly limitless time and devotion spent with them throughout their lives, videotaping

their practices and games, building them a batting cage, even enduring a broken nose from an

errant baseball to the face while he pitched balls to them every night to practice. His daughter,

Caroline, writes of her father’s similar devotion to her in her volleyball career. Caroline, who is a

high school senior, has played varsity volleyball her whole high school career, writes how her

father’s support helped her play her best, with her team winning the State Championship this past

year. Christie Wiseman, Joe’s wife of almost 30 years, beautifully shares how close and loving

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their family has been throughout their incredibly happy marriage, and how, with Joe and her

children, she has really lived a dream come true.

But it is not just Joe’s immediate, nuclear family who have witnessed Joe’s prioritiza tio n

of his family. Joe’s devotion to his family is so predominant in his life that his in-laws, his

neighbors, his co-workers, his former clergy, his Bible Study leader, and even his former

colleagues have all taken the time to mention and point this out in their support letters. AS they all

attest, Joe has been a loving and devoted husband and father from day one.

Joe is an honest and law-abiding man. We understand that this statement may seem

strange in the context of a Sentencing Memo. But, it is true and important -- except for this case,

Joe has no criminal history. 6 Indeed, as the letters submitted in support for Joe show, the most

common reaction of Joe’s friends and family upon learning that Joe has pled guilty to the federal

crime of conspiracy to commit honest services fraud was complete and total shock because Joe

has always been such an honest man of integrity. As his sister, Janet Wiseman notes in her letter,

Joe has always been a “straight arrow.” As you can see, Joe’s involvement in this Buncombe

County scheme is an aberrant outlier and stands in stark contrast to his life-long dedication to high

standards and strong moral principles.

Even before Joe knew whether he would be charged in relation to the Buncombe County

investigation, Joe thoroughly and methodically provided completely honest information to his

attorneys and to the Government. Joe has been questioned thoroughly by an accomplished former

federal criminal investigator, former Special Agent Ron Taylor, and Ron Taylor has determined

that Joe’s statements and explanations about his involvement in this case are credible. And, we

expect that the Government will echo that sentiment in describing their interactions with Joe.

6Joe’s only “brushes with the law” have come in the form of four traffic-related offenses, the most recent of which
occurred almost thirteen years ago.

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Joe is a Godly man. Joe’s faith is not a gallows conversion. As his mother has attested

in her letter of support, Joe was raised in a Catholic family, and he has remained very devoted to

his Christian faith throughout his life. While attending graduate school at UNC, he was very active

in the campus Newman Center. While living in Raleigh in 1999, he began participating in a weekly

Bible study through a group called Bible Study Fellowship (“BSF”). In fact, when his boys were

old enough, he took Joseph and Patrick to BSF with him every Monday. And, he was an active

member of the Bay Leaf Baptist Church in North Raleigh. In his letter of support, Senior Pastor

of Bay Leaf Marty Jacumin describes Joe, whom he knew well, as “the epitome of a man who

loves his family and desires to be the best father he can be.” He also shares that, in all the years

he has known Joe and his family, they have been a “tremendous blessing” to him. 7

When Joe was transferred to Atlanta in 2006, he located another BSF group, in which he

has been an active and regular participant for two hours each week. His BSF group leader is none

other than Billy “White Shoes” Johnson, who also has submitted a letter of support for Joe. In that

letter, Mr. Johnson states that despite the current trying circumstances, he has watched Joe grow

in his faith and that he fully expects Joe to be the leader of the BSF Bible Study one day in the

future.

Also in Atlanta, Joe, Christie, and the children became members and are regular

participants at the First Baptist Church of Woodstock. Joe presently does volunteer work there on

a weekly basis.

Joe’s faith is and has always been a centerpiece of his own life, and he and his wife,

Christie, went to great lengths to ensure that it was a centerpiece of their own family. To a person,

every family member on both Joe’s and Christie’s sides of the family has spoken eloquently in

7Pastor Jacumin also jokes that, because he played football at NC State, it was hard for him to cheer for Joseph and
Patrick Wiseman when they were playing baseball for Georgia Tech, but he tried.

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their support letters about the central and important role Christianity has always held in Joe’s life

and how he and Christie have made sure that it became the guiding force for their children.

And, Joe and his family have leaned on their faith and their trust in God’s plan to get them

through this terrible ordeal.

2. Joe, the Professional Engineer

As noted above, Joe distinguished himself as an engineer both academically and

professionally. There is no serious question as to the quality of Joe’s engineering work anywhere,

including in Buncombe County. Even after the return of the honest services fraud indictment in

August of 2018 that all but named Joe as a coconspirator, the County expressed complete

satisfaction with the quality of Joe’s engineering work. According to Interim County Manager

George Wood, “officials believe the work provided by Wiseman and his companies is valid. I don't

think there's been any issue about the adequacy of the services he provided.” Asheville Citizen

Times, August 14, 2018. And Jon Creighton the Planning Director and Assistant County Manager

of Buncombe County for thirty-four years has now publicly affirmed that Joe’s contract prices

were reasonable, that he did a good job, and that his charges to the County “were not higher than

the reasonable ranges normally charged by vendors and contractors” for the type of work that Joe

performed. See Sentencing Memorandum of Jon Creighton, Case No. 1:18-cr-88, Dock. No. 67, p. 31

(emphasis added) 8

8 Creighton has made these statements validating the pricing and performance of Joe’s contracts with Buncombe
County knowing that he is bound by his plea agreement to tell only the unvarnished truth and with every incentive to
inculpate or otherwise disparage Joe if he could do so honestly. As addressed in more detail herein, the evidence also
conclusively demonstrates that Buncombe County was not charged for and did not pay for the costs and expenses of
the trips that Greene et al. forced Joe to pay. Instead, those costs were absorbed by Joe and not passed on to the
Buncombe County taxpayers. And, without conceding the issue, the Government has acknowledged that it cannot
disprove Joe’s assertion that he did not pad his contracts to recoup the travel expenditures he made on behalf of Greene,
Creighton, and Stone. See Wiseman Factual Basis at 3.

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Indeed, Buncombe County as a whole actually benefitted significantly from having Joe as

its environmental engineer and expert, despite the unfortunate events in the last few years.

Specifically, it is because of Joe’s diligence and work that the County was even able to build its

landfill. In the late 1990s, when Buncombe County was seeking to have the landfill permitted by

the State of North Carolina, the County was originally told that the site it proposed was not suitable

and would not be permitted. Joe put together a team of experts to address the concerns raised by

the State, and ultimately the State agreed to permit the landfill on the site proposed. Without this

landfill, the citizens of Buncombe County would be incurring millions of dollars in additional cost

of transporting their waste to landfills in South Carolina.

Also, in the late 1990s, Joe was successful in getting the EPA to approve a leachate 9 re-

circulation/bioreactor project at the Buncombe County landfill, one of only two such approved

projects in the entire country. In the typical landfill, the leachate has to be collected and hauled

off by truck, incurring significant additional costs. In the leachate re-circulation/bioreactor project

that Joe convinced the EPA to approve, the leachate is instead collected and re-circulated on a

continuous loop over the landfill itself. This process not only saves the taxpayers the cost of

leachate collection and transport, but it also helps to break down the existing garbage in the landfill

to create more space and to increase the life of the landfill, resulting in significant additional cost

savings. Over the long term, this will significantly delay the need for a new landfill in Buncombe

County, saving taxpayers additional millions.

Further, in the Spring/Summer 2009, Joe conceived and executed the successful campaign

to obtain over $4 million in federal stimulus funds 10 for the methane collection and energy

9 Leachate is liquid that settles at the bottom of the landfill when water trickles down through the garbage.

10 These funds consisted of a $3 million grant and a $1 million interest-free loan.

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generation project for the Buncombe County landfill. Thinking outside the box, Joe packaged the

landfill methane collection generator as a “green” project, which allowed Buncombe County to

qualify for stimulus funds dedicated exclusively to green projects. In a nutshell, the generator

extracts the methane gas from the landfill and converts it to energy, which is purchased by Duke

Energy. And, this methane gas generator is the gift to Buncombe County that keeps on giving – it

generates approximately $750,000 in revenue annually (or $15 million over the 20-year life of the

facility) for Buncombe County thanks to Joe.

Most recently, Joe’s ideas for expanding and changing the slope of the landfill, based on

his experience and expertise, saved the County additional significant sums. 11 And, as Investigato r

Ron Taylor has determined as part of his expert analysis, choosing Joe as Buncombe County’s

environmental engineer over the former provider, CDM, resulted in an annual cost savings to

Buncombe County of more than $300,000 in engineering fees alone.

In short, Joe’s actions in paying for these illegal boondoggles indisputably denied

Buncombe County taxpayers of the honest services of their elected officials, and Joe takes full

responsibility for those bad choices. But, at least, his actions did not come at the Buncombe

County taxpayer’s financial expense. Indeed, because Joe was their outside engineer, the citize ns

of Buncombe County have benefitted financially to the tune of hundreds of thousands of dollars a

year, millions of dollars over time.

So why is this quiet, unassuming engineering expert standing before the Court to be

sentenced for a federal crime? Challenging circumstances, a difficult job market, bad decisions, a

failure of moral courage, and Wanda Greene.

11 Creighton Sentencing Memorandum, p. 31.

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II. NATURE AND CIRCUMSTANCES OF THE OFFENSE

Despite successfully turning around the failing CDM office in Atlanta, and notwithstand ing

his recognized experience and expertise in environmental engineering, Joe was not good at playing

office politics. For reasons that are still unclear to Joe, and despite his spectacular turn-around of

the CDM Atlanta office, in or around 2010, he was replaced as the manager of the Atlanta office.

He incurred a substantial pay cut and was relegated to performing menial, entry-level engineer ing

tasks in Atlanta.

It was clear that CDM was attempting to force Joe out, but with no immediate employme nt

prospects for a fifty- four-year-old man that would offer him anywhere near the same financ ia l

security, Joe had no choice but to hang on despite the humiliation and decrease in his pay. His one

consolation was that he was allowed to continue to serve in his position as long-standing Project

Manager for Buncombe County, which at least provided him with intellectual stimulation and

professional satisfaction.

But, in 2013, the axe fell, and Joe was laid off without explanation after more than 28 years

with CDM. Despite his best efforts, Joe was unable to find to find employment that was

commensurate with his skill, experience, and expertise and that would compensate him anywhere

near even his reduced earnings at CDM. 12

On the day that he was fired, Joe contacted the clients with whom he was working,

including Creighton, the person primarily responsible for approving and overseeing the Buncombe

County landfill and other construction projects that Joe had been working on for so many years.

Joe told Creighton that he had been fired and that he would be replaced as the project supervisor

12 At the time that he was forced out of CDM in 2013, Joe was earning a salary of approximately $150,000 per year.

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for Buncombe County by another CDM employee. Having worked with Joe for many years and

valuing his experience and expertise, Creighton was not happy to hear this news.

In short order, Creighton used his contacts and influence to get Joe hired as a consulta nt

with a North Carolina engineering firm, then known as PETRA. Creighton began to sever ties

with CDM and started directing the Buncombe County work to Joe through PETRA on the

condition that Joe remained the principle engineer on Buncombe County’s landfill projects.

During the transition period, PETRA only received a small share of the contract work with

Buncombe County. 13 For various reasons, the consulting situation at PETRA turned out not to be

a great fit for Joe, and so in early 2014,with much trepidation, Joe decided to strike out on his own

and formed his own engineering company, EIC. Joe’s primary client between 2014 and 2017 was

Buncombe County, and Creighton directed the contracts associated with the Buncombe County

landfill to EIC. And, as noted above, the change from CDM to Joe’s company resulted in a net

savings to the County of over $300,000 per year, without giving up the expertise and experience

that Joe had brought to the County for almost three decades. 14

1. Industry practices and legitimate business expenses

To understand what has led Joe to be standing before this Court, it is important to

understand the industry practices that Joe learned during his tenure with CDM, which continued

13The Government has estimated that CDM earned approximately $13.3 million from its contracts with Buncombe
County between 2001 and 2017, or more than $830,000 per year. See Case No. 1:19-cr-17, Bill of Information, Dock.
No. 1, para. 4 (Bill of Information). Despite the press reports that read as if all that money went into Joe’s pocket, as
noted, Joe only received a salary of less than 25% of the income received by CDM. And, by contrast, PETRA earned
only about $260,000 between 2014 and 2016 during the two years that Joe served as a consultant on PETRA’s
contracts with Buncombe County. Id. at para. 5. And, Joe only received a fraction of that income as a consultant.
14 The Government estimates that EIC earned approximately $1.9 million from its contracts with Buncombe County
between 2014 and 2018, or about $475,000 per year. Bill of Information, para. 7. That sum is barely half the amount
of revenue received by CDM on an annual basis for doing the same work. And, of course, that sum is gross receipts,
not the net income earned by EIC after the payment of expenses. .

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during his relationship with PETRA, and which he carried over to EIC. Specifically, the payment

of meals and entertainment expenses for clients in connection with business-related trips and client

cultivation was standard practice in Joe’s profession, much as it is in virtually every other service-

oriented business, including the practice of law.

When he first started working at CDM, such expenditures were routinely made by his

mentors and other senior engineers and were reimbursed by CDM. The payment for dinners and

entertainment expenses associated with business-related travel were considered legitimate

business expenses and were encouraged. Golf outings, fishing trips, and other expenditures were

considered appropriate expenses for client cultivation. Joe was actively encouraged by his bosses

to engage in these activities with clients, including state and local government clients, at CDM

expense.

Importantly, CDM drew no distinction between private companies and governme nt

entities, with one notable exception. CDM had a completely separate unit that handled all contracts

with the federal government. The payment of expenses on behalf of federal government agencies

and federal employees was strictly controlled, no doubt because of the myriad of federal laws,

regulations, and policies that govern the conduct of federal agencies, employees, and contractors

with whom CDM did business.

No such limitations were ever mentioned, much less placed on, the payment of expenses

for state and local government agencies or their employees. The payments were simply paid on

behalf of clients by the relevant CDM employee and then transparently submitted for

reimbursement to the company through an expense voucher system. At no time did anyone at

CDM suggest to Joe (or anyone else, to his knowledge) that such payments on behalf of state and

local government employees were improper, even though CDM, as a large international company,

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had its own compliance unit and a staff of in-house attorneys. Joe was always reimbursed for

such expenditures without pushback or complaint. 15 And while ignorance of the law is certainly

no excuse, Joe had no idea prior to this case, and no one at CDM or in any of the state or local

government clients that he served ever suggested that these business-related entertainme nt

expenses were or could be considered improper in any way. 16

Nothing changed when Joe began to work as a consultant for PETRA. In fact, he was once

again encouraged to “wine and dine” current and prospective clients, government and private alike,

and as with his time at CDM, Joe simply submitted a transparent voucher for those expenses and

was always reimbursed.

When Joe started his own company, EIC, in 2014, he incorporated these same practices

that he had learned at CDM and continued at PETRA into his own business, still having no idea

that these practices could be considered improper, much less illegal. But almost from the

beginning of EIC, Wanda Greene wielded her significant power to up the ante and turn the screws

so that she and her select group of fellow Buncombe County employees could enjoy luxury, non-

business related trips at Joe’s expense.

2. Greene extorts Joe

As noted, Joe, or more accurately CDM and PETRA, had paid for legitimate business-

related travel and entertainment expenses as a routine matter for Greene, Creighton, Stone, and

other Buncombe County employees for years. Joe continued to do the same after forming EIC and

taking over these contracts with the County.

15Joe recalls one instance where a government client suggested that he would like a new set of golf clubs. Given the
unusual nature of the request and the cost involved, Joe discussed the issue with his supervisors at CDM and received
permission to make the expenditure. Joe was reimbursed by the company for the cost.
16 As discussed in greater detail herein, not all such expenses are inherently improper or criminal under federal and
state law.

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But in the late summer of 2014, less than six months after forming EIC, things changed

dramatically. Creighton contacted Joe and told him that “Wanda wants to go to Key West.” The

clear implication was that Greene expected Joe to pay for that trip.

Joe did not take these demands lying down. He pushed back and demanded to know the

business nature of the trip. Creighton candidly admitted that there was none. And then he added

that Stone also intended to go on the trip. Taken aback, Joe protested. He told Creighton that he

could not justify paying for a trip that had no business purpose. Creighton’s response was to the

effect of “You know Wanda, she always gets her way. And when she doesn’t, she can be very

vindictive. You don’t want to cross Wanda. Others have learned that lesson the hard way.”

Despite the direct threat, Joe continued to protest that he could not justify paying for a trip

that had no business purpose. Ultimately, Creighton was forced to make clear to Joe that if he did

not agree to pay for this trip, Joe’s almost 30-year contracting relationship with the County would

be terminated by Wanda.

And, based on his own experiences over that 30-year tenure of his relationship with

Buncombe County, Joe knew the threat to his livelihood was real. 17 Greene had never been afraid

to sacrifice the best interests of the County to achieve her personal desires. 18 That Joe could not

be replaced with anyone with his experience and expertise with the Buncombe County landfill

would have been of no moment to Greene. The number of different ways that she successfully

17 Joe knew that this was not an idle threat. He had heard the stories of County employees who had been demoted or
fired for refusing to accede to Greene’s demands. One example has recently come to light through the letter filed with
the Court by former Finance Director Tim Flora. It has been reported that former Budget Director Ken Gobels and
now deceased IT Director Lewis Miles suffered similar fates when they dared to cross Greene.

18 Even Creighton, who worked with Greene on a daily basis, was afraid of her. In his Sentencing Memorandum, he
states that he knew that Greene’s demand that Joe pay for their personal travel was wrong but “he did not want to quit
or get fired. Wanda was mercurial. Wanda was powerful.” See Creighton Memo at 31.

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defrauded Buncombe County shows how little she cared whether quality services were provided,

as long as she got what she wanted.

At the time of Creighton’s demand that Joe pay for this Key West trip, Buncombe County

represented more than 95% of EIC’s gross revenues. Allowing fear instead of moral courage to

drive him, Joe acceded to Greene’s demand and made the required travel arrangements. He

attempted to salve his conscience by convincing himself that this would be a one-time request. He

completely underestimated the depths of Greene’s greed. 19

Almost immediately, Greene insisted on a second trip to Key West in December 2014, and

then, sometime in 2015, she sent Creighton to give Joe a detailed list of trips that she, Creighton,

and Stone expected to take at Joe’s expense over the next 15 months. The list identified the specific

destination and the month and year of the desired trip. 20

When presented with the list, Joe again protested that many of these proposed trips could

not be justified as business related. Creighton reiterated that this is what Greene wanted and that,

bottom line, Joe would agree to pay for the trips or Wanda would terminate his contracts with the

County.

These non-business related trips were a constant source of discomfort for Joe. Although he

did not realize that paying for these trips was a crime, let alone a federal crime, 21 Joe believed they

19For example, Joe did not know about Greene’s misuse of the County’s credit cards or her duping the County
Commissioners into funding her fraudulent insurance scam. And Joe was shocked to learn that his three codefendants
were also billing the County for the trips that he had already paid for in full.

20 See Creighton Sentencing Memorandum, p. 3.

21 Candidly, whether Joe’s status as a victim of extortion by corrupt Buncombe County employees provided a legal
defense to the Government’s position that he was a coconspirator in a bribery scheme was a close and troubling
question for us. The Fourth Circuit has acknowledged that extortion can be an affirmative defense to the charge of
bribery. United States v. Spitler, 800 F.2d 1267, 1276 (4th Cir. 1986) (“It seems clear that the victim of a crime should
not be held as an accomplice in [or a conspirator to] its perpetration, even though his conduct in a sense may have
assisted in the commission of the crime and the elements of complicity or conspiracy may technically exist.”); United
States v. Miller 340 F.2d 421 (4th Cir. 1965), (“the threat of economic harm may under some circumstance result in

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were less than ethical, and he took steps to try to extricate himself from the situation. He sought

other employment, but the engineering firms he contacted were not interested in hiring a man in

his mid-fifties. He finally got some interest from his EPA contacts, but he it ultimately did not

pan out.

Not all the originally requested trips on Wanda’s list were taken, but Joe created a list

where he identified nine trips that he said had absolutely no business purpose. Counsel for Joe

provided that list to the Government and those nine trips are the trips that are included in Joe’s Bill

of Information.

3. What is Not Before the Court in Joe’s Case

Although Joe was not named in the August 18, 2018 Indictment of Greene, Creighton, and

Stone, his alleged role was described in that Indictment by reference to the “Contractor.” Before

and after that Indictment, Joe and his counsel have had the opportunity to meet with the

Government and provide evidence that some of the Government’s initial allegations in that

Indictment as they related to Joe’s conduct were incorrect. And because of these meetings and

exchanges of factual information and legal authority, Joe has pleaded to a separate Bill of

Information alleging a separate theory of federal liability than Greene, Creighton, and Stone. It is

important, therefore, that the Court understand the actual facts relating to Joe and where the August

18, 2018 Indictment (understandably) misses the mark with regard to the “Contractor.”.

a. Buncombe County taxpayers did not pay for Greene’s, Creighton’s, and
Stone’s non-business related trips.

In the August 18, 2018 indictment of Greene, Creighton, and Stone, the Governme nt

alleged that “Buncombe County often unwittingly funded the briberies and kickbacks of its own

extortion.”). Considering all of the facts here and the risks of litigation, however, Joe has chosen to forego those
potential avenues and simply take responsibility for his actions.

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officials.” Case No. 1:18-cr-88, Dock. No.1, para. 37. In short, the Government believed that Joe

had inflated the price of his lump sum contracts to cover or recoup the costs of the illegal trips,

which would in essence mean that these bribes were paid with the County’s own money.

We have provided evidence to the Government and are providing additional proof to this

Court that this allegation is wrong. What this evidence, including the expert report of former

Special Agent Ron Taylor (attached hereto as Exhibit A), proves is that Joe (through EIC), not

Buncombe County, paid for the non-business trips and other expenses out of his anticipated profit

from his appropriate and reasonable lump sum contracts: those costs were not passed on to

Buncombe County taxpayers.

Specifically, the only way that Buncombe County could have “paid for its own bribes” is

if Joe had improperly inflated his contract price to account for or include extra “padding” to cover

these travel and entertainment expenses. But the evidence is clear that Joe did not, in fact, do that.

As noted above, the County has publicly acknowledged that Joe’s contracts were reasonable and

valid. And Creighton, even against his own interests, has candidly admitted that the lump sum

prices for Joe’s contracts with Buncombe County were all reasonable and within industry

standards.

Additionally, former Special Agent Taylor has assessed, at our request, whether the

contracts with Buncombe County were inflated or padded. Agent Taylor conducted a

comprehensive forensic examination of Joe’s contracts, performed a comparative analysis of more

than two dozen recurring contracts, and reviewed numerous contracts from CDM and the current

Buncombe County contractor. Agent Taylor then reviewed Joe’s business tax returns dating back

to 2011 and compared the net income to the value of the contracts Joe had with Buncombe County

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between 2014 and 2017. And, finally, Agent Taylor spent several hours interviewing Joe, testing

Joe’s credibility and truthfulness.

Agent Taylor is prepared to testify, if necessary, as follows: “Based on my experience,

my expertise, my thorough review of the relevant evidence and my discussions with Mr. Wiseman,

I have concluded, to a reasonable certainty that Mr. Wiseman did not, and could not, have padded

or inflated his contracts with Buncombe County.” Exhibit A, p. 5. 22 Indeed, rather than suffering

any financial loss, Agent Taylor has determined that Buncombe County actually recognized an

annual savings in excess of $300,000 by selecting Joe as its environmental engineer on these

contracts as compared to what the County was previously paying CDM for the same work. 23

Because Joe’s lump sum contracts were reasonable and legitimate (i.e., not inflated or

padded), he did not and could not have passed the costs of these illegal trips to Buncombe County.

Instead, Joe absorbed the costs of these trips out of the anticipated profit that he was legally entitled

to earn under the legitimate, reasonable lump sum contracts. Instead of allowing the taxpayers to

be financially injured by Greene’s schemes, Joe instead took a sizeable hit to his company’s bottom

line and his own wallet.

In sum, in stark contrast to the County officials who engaged in behavior that was intended

to and did bilk the Buncombe County taxpayers out of millions of dollars, 24 Joe ensured that his

actions, as regrettable as they are, were never taken at the economic expense of these taxpayers.

22And, as noted above, the Government has acknowledged, without conceding the correctness of the defense position,
that it is not able to prove that Joe’s contracts were inflated or to refute our position that they were not. See Wiseman
Factual Basis.

23 Notably, when all of the current allegations came to light and Joe’s relationship with Buncombe County was
terminated, the County announced that it was going to re-hire CDM to perform the work, which would have meant
significant increased cost to Buncombe County and its citizens.

24No one, including the federal Government, has suggested that Joe was aware of or should have been aware of the
other schemes in which these Buncombe County officials were engaged and that did affect the County fisc.

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Indeed, throughout Joe’s more than twenty years in serving Buncombe County, he consistently

provided highly skilled, professional engineering services that inured materially to Buncombe

County’s economic benefit.

b. EIC expenses for legitimate business trips are intentionally not a part of
Joe’s Bill of Information.

The Government initially painted with a broad brush in the August 2018 Indictment and

essentially alleged that any payment by a contractor to or on behalf of Buncombe County’s

employees was a crime. This position significantly overstates, however, what conduct is actually

criminalized by law. That indictment remains part of the public record, however, and it has been

inaccurately seized upon by the press to exaggerate Joe’s actual criminal conduct. 25 But more

importantly, to the extent that the Court has necessarily reviewed that Indictment as part of the

other sentencings occurring on the same day as Joe’s, we believe it is important to distinguish Joe’s

Bill of Information and to offer a brief synopsis of the criminal law applicable the specific conduct

with which he is and is not charged here. 26

Long-standing and typical practices of entertaining clients, even government clients, are

not inherently criminal. As the Fourth Circuit has held, the “traditional business practice of

promoting a favorable business climate by entertaining and doing favors for potential customers

[does not become] bribery merely because the potential customer is the government. Such

expenditures, although inspired by the hope of greater government business, are not intended as

a quid pro quo for that business.” United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976); see

also United States v. Harvey, 532 F.3d 326, 335 (4th Cir. 2008) (same).

25Reading the press, one could easily conclude that Joe personally made over $13 million through his work as the
Project Engineer for Buncombe County when nothing could be further from the truth.
26In the interest of brevity here and to the extent the Court is interested, we are attaching a more fulsome legal
memorandum on the parameters and requirements of the federal bribery statutes, attached hereto as Exhibit B.

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As applied here with regard to Joe, the Government ultimately agreed to charge Joe with

honest services fraud only with regard to a select number of trips that all parties agreed were

completely unrelated to any legitimate travel or client cultivation. See Wiseman Factual Basis.

Thus, the Bill of Information to which Joe entered his guilty plea intentionally and appropriately

limits the charged trips to those which had no legitimate business purpose. As such, the PSR has

properly not included any other trips or expenses as either part of the nature and circumstances of

this offense or as relevant conduct. 27

III. THE APPROPRIATE SENTENCE.

Joe’s Guideline Offense Level, as calculated by the Probation Officer, is Level 21,

Criminal History Category I. Accordingly, his sentencing range, before any departures or

variances, is 37-46 months.

There are five specific bases for a departure or variance that are applicable to this case.

When considered together, we respectfully submit that Joe’s Guidelines range should be reduced

to a sentencing range that would allow the Court, to impose a sentence other than an active prison

sentence, with appropriate conditions, that would achieve the goals of sentencing set forth in 18

U.S.C. § 3553(a)(2).

1. Substantial Assistance

In July of 2017, Greene abruptly announced her retirement. Less than a month later, the

fact that she was under a federal grand jury investigation was inadvertently disclosed. The nature

of that investigation and the specific conduct that was being investigated, however, remained

secret.

27 Nor does the North Carolina misdemeanor anti-gift statute, N.C.G.S § 133-32(a), provide a legitimate basis for a
federal bribery prosecution. The inapplicability of that statute is also addressed in the attached memorandum.

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Although Joe had always considered the payments for trips with no business purpose

morally and ethically wrong, he never even considered that the payments could be criminal, let

alone a violation of federal law. And why would he?

For more than twenty-eight years he had practiced his profession in North Carolina as an

employee of CDM and was encouraged to make similar expenditures for government clients

without ever being told even about the North Carolina misdemeanor anti-gift statute, much less of

any potential federal prohibition. And, unlike Greene, Creighton, and Stone, Joe had no reason to

be aware of the County’s policy prohibiting the receipt of anything of value from a person or

company doing business with the County.

The first hint that Joe had that the payments for the non-business-related trips might be

considered illegal came when Joe was approached by Creighton in August of 2017, after the

existence of the grand jury investigation became public, with a request that Joe tally up the

expenses he had paid for on Creighton’s behalf for the last two years. As requested, Joe provided

Creighton with a spreadsheet identifying expenditures he made in that time period for Greene,

Creighton, and Stone. Creighton then provided Joe with five checks to repay the expenses Joe

identified on the spreadsheet.

Importantly, however, Creighton made these payments in lieu of paying outstanding

amounts due on legitimate contracts Joe had with Buncombe County. To accomplish this,

Creighton directed Joe not to submit certain invoices for work already performed, and Creighton

instructed his assistant not to pay some of the invoices already submitted to the County totaling up

to about the amount that Creighton paid Joe. Because Joe and not the County had born all the cost

for the trips in the first place, and because Creighton’s payment was credited against legitimate

work for which Joe was due, Creighton’s attempt to refund some of the money he had taken from

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Joe, while perhaps a laudable gesture, was ineffectual. Joe was entitled to be paid by the County

for the legitimate work he had already performed and to be repaid by Creighton for the expenses

attributable to his travel which Joe had previously paid. In essence, Creighton simply paid Joe

with his own funds amounts legitimately due to Joe from the County, but Joe still had to absorb

the expenditures made on Creighton’s behalf so that the County would not.

Even knowing about the ongoing investigation and even after Creighton had insisted upon

this odd “repayment” arrangement, Joe still did not appreciate the jeopardy that the ongoing

investigation posed to him. Creighton specifically told Joe that the federal government was “not

interested in” the travel-related expenses or in Joe’s payments for the same. Nonetheless,

Creighton did warn that ‘Wanda is vindictive and she will not hesitate to throw us under the bus

to save herself.”

Joe was unnerved by the conversation, but he could not see a way that he could get “thrown

under the bus” by Greene. He knew that paying for trips which had no business purpose was

unethical, but he also knew that he had absorbed those costs rather than padding his contracts and

recouping the expenses. At that time, Joe still did not believe or understand that there was any

crime that Wanda Greene could credibly accuse him of committing.

What Joe also did not know is that, in addition to his payments for Greene’s, Creighton’s,

and Stone’s travel, they were each submitting vouchers for reimbursement for those same expenses

to the County. Or that they would seek payment for annual leave for the hours they spent on these

personal junkets. 28

28When undersigned counsel first met with Joe, he was asked whether he knew if Greene, Creighton, and Stone might
be seeking reimbursement for the trips for which he had paid. He said no but then naively asked “why would they do
that?”

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Although he was troubled by what Creighton had told him, Joe did not believe or

understand at that point that he had engaged in anything illegal. So, Joe simply continued to do

his job as the Project Manager for the engineering projects with Buncombe County. And to his

great relief, after Greene’s retirement, the demands that he pay for personal travel for Creighton

and Stone stopped. 29

Joe and his family’s whole world changed on June 28, 2018. While Joe was traveling with

his sons, federal agents conducted a search of his home, seized all of his business and many of his

personal records, his computers, and his backup hard drives. Before returning home and with no

understanding of the purpose of the search, Joe contacted counsel.

Counsel met with Joe for the first time on July 10th and a week later met with the AUSA

Edwards and his team of agents. With less than two weeks to prepare for that meeting, counsel

provided significant information in the multi-hour meeting and committed to getting answers to

the questions raised by the agents. With Joe’s permission and encouragement, counsel also offered

for the agents to debrief Joe at the earliest available opportunity.

In return, and based upon some of the information that Joe, through counsel, was able to

provide in that initial meeting, the Government agreed not (and ultimately did not) name Joe in

the anticipated August indictment of Greene, Creighton, and Stone. The debriefing of Joe was

scheduled for July 30th. In the interim, counsel provided additional information to the

Government and offered to image a hard drive and computer that the Government had not seized

during the search of Joe’s home.

29 In what can only be characterized as unmitigated gall, Greene took at least one more trip at Joe’s expense after her
retirement knowing that she was already under federal criminal investigation. Greene used Joe’s credit card without
his knowledge or permission and Joe only learned about the trip when he received his credit card statement.

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With barely a month to gather documents, understand the facts, and review the applicable

law, and with no real knowledge of the scope of the Government’s investigation, we traveled to

Asheville with Joe, fully intending that he sit for a no-holds barred interview with the agents to

answer any and all the Government’s questions. Joe was willing to sit for this interview without

any advance knowledge or assurance as to whether he would be charged, what he might be charged

with, or what those consequences might be. But, because of circumstances with the U.S.

Attorney’s office that were entirely outside of Joe’s control, the debriefing was cancelled by the

U.S. Attorney’s office as Joe sat in the outer office of the SBI waiting to be interviewed. Despite

these unfortunate circumstances, Joe’s willingness to be fully debriefed within a month of learning

that he was the target of a grand jury investigation is timely. See Guideline § 5K1.1(a)(5).

Because of scheduling conflicts of counsel and the Government representatives, the

debriefing could not be rescheduled until September, after the grand jury returned the honest

services fraud and bribery indictment against Greene, Creighton, and Stone. In the interim, and

before that September indictment, however, Joe, through his counsel, provided the Governme nt

with a detailed factual and legal proffer to clarify several key issues.

From reviewing that indictment line by line with Joe, it became apparent that the

Government had a fundamental misunderstanding of the nature of lump sum contracts, which is a

standard type of contract that professional engineers submit when bidding on work for a project

and which is all that Joe ever had with the County. 30

30 The Court may already be familiar with lump sum contracts which are completely different from time and material
contracts. But, in brief, the risks in lump sum contracts based on, for example cost overruns or the failure to correctly
anticipate subcontractor expenses, are placed solely on the contractor. Whether the contractor makes any profit on
the contract, he will be paid only the agreed upon contract price. How the contractor chooses to or is required to spend
the agreed upon payment under the contract is entirely up to the contractor, with no risk or input from the client. And,
requests for interim payments, or draws, on the negotiated price need not be tied to a particular amount of work
actually performed toward completion of the contract. Rather, such requests for interim payments are generally linked
to expenses that the contractor has incurred at a particular point in the performance of the contract. Thus, what the
Government initially perceived as a proverbial “smoking gun” in terms of Joe’s fraudulent conduct was actually a

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It was also apparent that the Government mistakenly believed, based in part on the North

Carolina misdemeanor anti-gift statute, that any payments by a contractor on behalf of a

government employee constituted a crime, and a violation of the federal bribery statutes. But, as

explained briefly herein and in greater detail in the attached legal memorandum (Exhibit B), not

every payment made to or on behalf of a government employee is an illegal bribe as opposed to a

legitimate business practice. See United States v. Arthur, supra, 544 F.2d at 734 (“It does not

follow, however, that the traditional business practice of promoting a favorable business climate

by entertaining and doing favors for potential customers becomes bribery merely because the

potential customer is the government.”). And, as also explained in the attached legal

memorandum, the North Carolina statute, with the absence of a mens rea element applicable to

contractors, cannot support a state or federal indictment.

Accordingly, in addition to providing the Government with significant additional and

corroborating evidence and a factual proffer to answer the agents’ questions during the interim

before Joe’s debriefing, Joe and his counsel worked diligently to provide information to correct

some of the misunderstandings present in the August indictment. And, on September 19, 2018,

Joe submitted himself to a marathon debriefing that lasted almost eight hours. In that debrief, Joe

greatly assisted agents by painstakingly going through various contract and financial documents,

explaining their meaning, explaining how they related to each other, pointing out additional factual

connections and potential theories, and otherwise connecting the dots for many of the trips and

expenses at issue. He also provided significant information about other potential fraudule nt

conduct occurring in Buncombe County, including the alleged activities of now former-

Commissioner Frost, who has since been indicted.

misunderstanding of how lump sum contracts work. But the nature of lump sum contracts is not intuitive, and the
Government’s genuine initial misunderstanding of them is understandable.

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Joe was also debrief again by the Government in mid-July, and additional debriefings are

expected to occur over the next several months.

The Government will, of course, offer its evaluation of the significance, usefulness,

truthfulness, and reliability of the information provided by Joe to date, and we all acknowledge

that there is more to do. 31 But the fact that Joe has pled guilty to a Bill of Information that is

materially different in tone and scope from the August Indictment demonstrates that, at a

minimum, the factual and legal information submitted by and on behalf of Joe was useful and

credible to the Government. See Guideline § 5K1.1(a)(1), (2).

Finally, and without going into details, Joe’s cooperation with the Government is ongoing

and extends beyond the corruption by former Buncombe County employees already indicted. 32

Some of that information has already proven useful to the Government, and Joe remains ready,

willing and able to continue to assist the Government as its investigation(s) continue(s). Suffice to

say at this point, Joe’s “in the weeds” nature and his familiarity with the documents associated

with engineering contracts will undoubtedly continue to assist the Government in its ongoing

endeavors.

Accordingly, Joe’s timely, truthful, significant, and useful cooperation with and assistance

to the Government warrants a departure from the applicable sentencing range.

31 As the Court is aware from the filed Motion to Continue Sentencing, Joe’s cooperation is not yet complete. While
the Government has confirmed the value on Joe’s cooperation so far, it may not be in the position yet to move for a
5K departure. Even in the absence of a Government motion, however, this Court is authorized to and should consider
the extent of Joe’s efforts to cooperate to date under 18 U.S.C.§ 3553(a). See United States v. Terry, 771 Fed. Appx.
277, 279 (4th Cir. 2019) (And, although the Government claims otherwise, the court was free to consider Terry’s
cooperation in the course of applying the § 3553(a) factors even in the absence of a substantial assistance motion.”).
See also United States v. Robinson, 741 F.3d 588, 599 (5th Cir. 2014) (joining the First, Sixth, Seventh, and Tenth
Circuits in “holding that a sentencing court has the power to consider a defendant’s cooperation under § 3553(a),
irrespective of whether the Government files a [substantial assistance] motion.”).

32 Rather than complicate matters further with a new motion to seal and a redacted sentencing memorandum, Joe
simply incorporates the previously filed memorandum in support of his motion to seal the motion to continue the
sentencing hearing and the sealed motion to continue.

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2. Departure based on physical impairment.
Guideline § 5H1.4 authorizes a sentencing court to depart from the applicable guidelines

range based on a defendant’s extraordinary physical impairment. Specifically, the Guideline

provides:

Physical condition or appearance, including physique, may be relevant in determining


whether a departure is warranted, if the condition or appearance, individually or in
combination with other offender characteristics, is present to an unusual degree and
distinguishes the case from the typical cases covered by the guidelines. An
extraordinary physical impairment may be a reason to depart downward; e.g., in the
case of a seriously infirm defendant, home detention may be as efficient as, and less
costly than, imprisonment.
Thus, physical impairment is an encouraged basis for a departure. United States v. Crumbliss,

58 Fed Appx. 577, 581 (4th Cir. 2003).

Joe suffers from severe Type II diabetes, which has already resulted in the amputation of

one of his toes. His version of the disease also causes chronic foot infections, poor circulatio n,

neuropathy in both feet, and a Charcot foot. Joe is regularly prescribed antibiotics to combat his

foot infections and ulcers. He wears orthopedic shoes with custom prescription inserts and uses

special creams and lotions to prevent ulcers. And, because of the neuropathy, Joe has no feeling in

his feet and therefore has significant balance issues.

Because of all of these complications from diabetes and the even more dire complicatio ns

that can easily and quickly arise, Joe routinely sees numerous doctors. Since 2013, for example,

Joe has been regularly treated by the following physicians for issues related to his diabetes:

• Dr. Rachel M. DelFavero of Laureate Medical Group in Sandy Springs, GA, for
Diabetes Type 2, high blood pressure, high cholesterol, and poor circulation;

• Dr. Titu D. Das of Infectious Disease Services of Georgia, P.C. (IDSGA) in Johns
Creek, GA, for numerous foot infections due to poor circulation as a result of the
diabetes;

• Dr. David Arkin of North Atlanta Endocrinology and Diabetes in Lawrenceville, GA,

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for treatment of diabetes.

• Dr. Deborah Kowalchuk of Resurgens Orthopedics in Johns Creek, GA, for Charcot
foot and an amputated second toe (right foot).

Unlike some other Type II diabetes patients, Joe’s diabetes is chronic and progressive. If

he does not receive immediate treatment for the sores and ulcers caused by the disease, he risks

further amputations. And, the costs of his various, regular, medical treatments and prescriptions

are expensive.

In a case involving a strikingly similar defendant, the Fourth Circuit affirmed the district

court’s decision to depart on the basis of the defendant’s severe case of Type II diabetes. United

States v. Crumbliss, supra, 58 Fed Appx. 577. In that case, the defendant was convicted a violatio n

of 18 U.S.C. § 666 and conspiracy to commit that offense in violation of 18 U.S.C. § 371. Id. at

578. The defendant’s applicable Guideline range was 37 to 46 months, but the district court granted

a downward departure pursuant to Guideline 5H1.4 and sentenced the defendant to five years’

probation with a special condition of 364 days of home confinement with electronic monitor ing.

Id.

The defendant had been diagnosed with diabetes several years before his appeal. Id. at

579. “He subsequently had two toes amputated and suffered debilitating weakness and pain in his

legs and hips.” Over the Government’s objection, the district court found that the defendant’s

condition was an extraordinary impairment under Guideline 5H1.4 and granted the departure.

In affirming the district court’s decision to depart, the Court of Appeals noted that

“[a]lthough diabetes is a relatively common disease, Crumbliss' experience was apparently not

typical in that he developed complications quickly which required amputation of two toes and use

of a wheelchair because of nerve damage in his lower extremities. His condition was not stabilized

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and the best method of treatment had not yet been determined.” Id. Accordingly, the district court

did not err in concluding that the defendant’s condition was extraordinary.

Having affirmed the district court’s determination that the defendant’s condition

constituted an extraordinary physical impairment, the Court of Appeals then considered the district

court’s rationale for imposing a probationary sentence:

Having found that Crumbliss had an extraordinary impairment, the district court was
permitted, even encouraged under § 5H1.4 to depart below the guideline range and
impose a sentence of home detention if it determined that such a sentence would be ‘as
efficient as, and less costly than, imprisonment.’ The court so found, noting that, “It costs
the taxpayers of this country a lot of money to keep a healthy person in prison. Quite
obviously, the cost is compounded when that person is in such physical constraints that
it's going to cause a lot of hospitalizations, medication, and treatment.”
Id. at 581 (emphasis added). The Court held that the district court did not abuse its discretion in

granting the departure. Id. See also United States v. Ghannam, 899 F.3d 327 (4th Cir. 1990)

(defendant’s physical condition is was a relevant consideration in whether to reduce a defendant’s

Guidelines sentence and whether to impose imprisonment at all).

As the PSR and Joe’s medical records 33 establish, Joe’s diabetes goes well beyond the

normal symptoms and collateral consequences associated with that otherwise relatively common

disease. He has already had to have one toe amputated, and he has to be constantly monitored to

ensure that more such amputations do not become necessary. He is currently receiving wound care

treatment for ulcers on both feet. He requires special shoes because of balance issues and to

prevent the type of injury to his feet that would lead to potential additional amputations. Like the

defendant in Crumbliss, Joe is significantly more compromised than the average diabetes sufferer,

and his condition will necessitate “a lot of hospitalizations, medication, and treatment.” The cost

33 The PSR has documented Joe’s diabetes. We are also in the process of collecting additional letters and medical
records for Joe that will further establish and elaborate on his condition. We will file these records under seal as they
are received.

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of Joe’s necessary monitoring and care will be exceedingly difficult for any prison to sustain, and

it will also be very costly. Under these circumstances, a downward departure to the same type of

split sentence imposed in Crumbliss would strike the appropriate balance of competing interests.

3. Overstated loss amount

Reductions from the applicable guidelines range based on overstated loss is an encouraged

basis for a departure. See Guideline § 2B1.1, Application Note 21(C). See also United States v.

Kalili, 100 Fed. Appx. 903, 906 (4th Cir. 2004) (same). Here, the loss amount for Joe’s offense is

determined under the fraud loss table in Guideline § 2B1.1(b), pursuant to Guideline 2C1.1(b)(2).

Joe’s plea agreement stipulates to a loss amount, and it is based on the fact that the value of the

personal trips paid for Greene, Creighton, Stone exceeded $40,000 but was less than $95,000.

Accordingly, Joe’s base offense level has been increased by six levels.

Here, however, we have a somewhat unusual case with unusual facts. As detailed above,

no actual pecuniary loss to the County occurred in Joe’s case (in contrast to the actual loss that

occurred in Greene, Creighton and Stone’s cases). A loss amount of greater than $40,000,

therefore, overstates the financial seriousness of Joe’s conduct. 34 As specifically detailed above,

Joe’s contracts with the County were “lump-sum” contracts, with the County agreeing to pay a

specific lump sum, regardless of any additional expenses that Joe might incur in the performance

of the contract.

As Jon Creighton and Agent Taylor have unequivocally attested, Joe did not inflate or pad

his contracts to cover the cost of these illegal, extorted trips. Instead, Joe absorbed the expenses

34 The County has speculated that it is due $500,000 in restitution. As discussed below, that claim is unsupported and
is based on the alleged value of the personal trips taken by Greene, Creighton, and Stone for which Joe paid with no
actual financial harm to the County. Therefore, the County’s unsupported claim for restitution should be denied.

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associated with those trips out of his anticipated, legitimate profit. Accordingly, the County did

not suffer any direct pecuniary harm from Joe’s conduct and there is no actual monetary loss.

We recognize that loss amounts for purposes of calculating the Guidelines offense level is

different from restitution. See e.g. United States v. Fair, 699 F.3d 508, 516 (D.C. Cir. 2012);

United States v. Newsome, 322 F.3d 328, 340 (4th Cir. 2003). However, in honest services fraud

cases, which is the charge to which Joe pled guilty, proof of a pecuniary loss to the victim is not

required. United States v. Nayak, 769 F.3d 978, 982-83 (7th Cir. 2014). Thus, the loss calculatio n

required by the Guidelines, though correctly determined, can and does in this case, overstate the

seriousness of the offense.

Because there is no actual economic loss to the County in Joe’s case, the required but

artificial method of determining the loss amount attributable to Joe’s conduct overstates both the

loss and the seriousness of the offense. We request the Court to depart to the next lowest “cliff”

under Guideline § 2B1.1(b). See Guideline § 2B1.1, Application Note 21(C). See also Kalili, 100

Fed. Appx. at 906 (same). Such a departure would result in a two-level reduction in Joe’s adjusted

offense level.

4. Minor Role in the Offense 35

Guideline § 3B1.2 authorizes “a range of downward adjustments for a defendant who plays

a part in committing the offense that makes him substantially less culpable than the average

participant in the criminal activity.” Guideline § 3B1.2, Application Note 3A. Guideline§ 3B1.2

35 As with the loss calculation discussed above, we are not challenging the Guidelines calculations in the PSR. And
we acknowledge that Joe’s plea agreement does not provide for a role in the offense reduction and we have agreed
that neither party may seek any other enhancements or reductions to the agreed upon offense level. However, the plea
agreement does authorize Joe to “seek a departure or variance from the ‘applicable guideline range’ (U.S.S.G. § 5C1.1)
determined by the district court at sentencing, if such departure or variance is permitted by law.”

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provides for the most modest such adjustment, a two-level reduction from a Guidelines offense

level for a defendant who was a “minor participant” in the charged criminal conduct.

The Application Notes to this provision clarify that whether a defendant is entitled to a role

in the offense reduction is to be based on the facts and circumstances of the case. “The

determination whether to apply subsection (a) or subsection (b), or an intermediate adjustment, is

based on the totality of the circumstances and involves a determination that is heavily dependent

upon the facts of the particular case.” Guideline § 3B1.2, Application Note 3C.

The following, non-exhaustive list of factors is provided to assist in making this

determination:

(i) the degree to which the defendant understood the scope and
structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or
organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making
authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant's participation in the
commission of the criminal activity, including the acts the defendant
performed and the responsibility and discretion the defendant had in
performing those acts;
(v) the degree to which the defendant stood to benefit from the
criminal activity.

Id. And, “[t]he fact that a defendant performs an essential or indispensable role in the crimina l

activity is not determinative. Such a defendant may receive an adjustment under this guideline if

he or she is substantially less culpable than the average participant in the criminal activity. ”

(emphasis added). Applying those factors to the instant case, Joe is substantially less culpable than

at least Greene and Creighton, and arguably Stone as well.

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First and foremost, Joe was not the architect of the bribery scheme, did not dictate the non-

business-related trips that would be taken, attempted to resist the demands for the illegitimate trips,

and did not exercise any of the decisions regarding the payments he would be required to make.

Wanda Greene’s Factual Basis makes this point clear:

At some time in 2015, the defendant prepared a written list of the places
she wanted to go, at [Mr. Wiseman’s] expense, and the proposed dates
of travel, and gave that list to Creighton, instructing him to pass it on to the
[Mr. Wiseman]. Creighton did so.

Para. 24 (emphasis added). By Wanda Greene’s own admission, Joe played no role in planning or

organizing the criminal activity.

Rather, Joe participated in the conspiracy under extreme duress, with the threat that his

continued business relationship of more than 25-years with the County would only continue if he

agreed to pay for the illegal trips. Again, Greene’s Factual Basis makes this point clear: “[Greene]

and Creighton had the authority to award or deny the contracts that [Joe’s] companies had with the

County. They and the Contractor understood and agreed that his providing these trips, gifts, and

favors was a necessary condition to his company's continuing to obtain contacts with the County.”

Greene Factual Basis, para. 22 (emphasis added).

Additionally, Joe did not accompany Greene, Creighton, and Stone on all of the trips for

which he was required to pay. Greene Factual Basis, para. 26. Joe’s codefendants simply billed

their expenses to his credit card. Id. Joe’s refusal to go on a number of the trips demonstrates that

he was not exercising decision-making authority in connection with the illegal activity. And, this

fact further demonstrates Joe’s attempt to limit his involvement in the criminal conduct.

Finally, Joe was unaware of, and did not participate in, anywhere close to the full scope of

the criminal activity by Greene, Creighton, and Stone, even as it related just to the personal travel.

For example, Greene took steps to have the County pay for additional trips even after she retired.

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To accomplish this, she transferred $45,000 into the Professional Service account within

Creighton’s department. Creighton Factual Basis, para. 11. “On the morning of June 9, 2017,

[Greene] informed [Creighton] by email: ‘Moved $45K to your professional services for [Joe’s

initials].’ Creighton did not use these funds and Joe was completely unaware of the transfer. Id.

Additionally, each of Joe’s codefendants defrauded the County in two separate, additiona l

ways relating to their improper personal travel, completely unassociated with and unbeknownst to

Joe:

[F]irst, by claiming that they had traveled on official County business and therefore
not using their annual leave for these trips. By doing so, they were able to preserve
their hours of annual leave, which they were later able to "sell" to the County,
thereby receiving monetary payments to which they were not legally entitled. The
second way in which the defendants used these trips to defraud the County was by
subnetting per diem and expense claims for their supposed costs of meals and
incidental expenses incurred during these trips. That is, while in fact their meals
and expenses were actually being paid for by [Joe], they nonetheless obtained cash
payments from the County for their supposed dining and incidental costs.

Id. at para. 12-13 (emphasis added).

Joe meets each of the criteria specified in the Guidelines for a role in offense reduction.

And, indeed, the Guidelines specifically recognize that corrupt government employees, like Joe’s

codefendants, who solicit bribes are more culpable than individuals, like Joe, who was coerced

into participating in a bribery scheme under the threat of economic ruin. Guideline § 2C1.1 was

specifically amended to emphasize this point:

Sections 2C1.1 and 2C1.2 each are amended to include alternative base offense levels,
with an increase of two levels for public official defendants who violate their offices or
responsibilities by accepting bribes, gratuities, or anything else of value. The higher
alternative base offense levels for public officials reflect the Commission’s view that
offenders who abuse their positions of public trust are inherently more culpable than
those who seek to corrupt them, and their offenses present a somewhat greater threat to
the integrity of governmental processes.

Guideline Amendment 667, November 1, 2004 (emphasis added).

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Here, Greene is charged in two other separate indictments and named as an unindicted

coconspirator in a third that do not implicate Joe in the least. Greene Factual Basis, para. 4-19.

And, although neither Creighton nor Stone are named as defendants in the indictment alleging the

illegal purchase of insurance policies, both stood to benefit from Greene’s illegal actions.

Specifically, Creighton was slated to receive a $522,000 life insurance policy for which

prepayments in the amount of $222,000 had been made; Stone was to receive a $617,000 policy

for which prepayments of $160,000 had been made. Id. at para 83.

Yet despite all of these stark differences between Joe’s position and conduct and that of his

codefendants, neither Greene, Creighton, nor Stone have received an upward adjustment based on

their roles in the offense associated with Joe. Instead, a two-level reduction has been

recommended for Stone as a minor participant.

Under all these facts, and weighing the relative roles and culpability of the defendants who

participated in the improper personal trips, Joe should receive a two-level reduction based on his

role in the offense compared to the roles played by at least Greene and Creighton and, truthfully,

by Stone as well, given her status as a senior government official. Accordingly, a downward

variance to accomplish this just result is warranted. 36

36 We acknowledge that the Guidelines purport to prohibit a departure motion to reduce a defendant’s sentence based
on his role in the offense. Guideline § 5K2.0(d)(3). However, after United States v. Booker, 543 U.S. 220, 245 (2005),
the Guidelines are advisory only. Accordingly, district courts are now free to deviate from the applicable Guidelines
range based on a policy disagreement with the Sentencing Guidelines. Kimbrough v. United States, 522 U.S. 85, 116
(2007). And, the Supreme Court has held that a district court may grant a variance based on a factor prohibited by the
Guidelines. Pepper v. United States, 562 476 (2011) (district court’s ability to consider post-offense rehabilitation is
not constrained by the Sentencing Guidelines). See also United States v. Sullivan, 756 Fed. Appx. 272, 279 (4th Cir.
2018) (affirming upward variance based on the defendant’s aggravated role in the offense under the factors of 18
U.S.C. § 3553(a) even though that adjustment is expressly prohibited as a basis for a departure motion under Guidelin e
5K2.0(d)(3)).

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5. Economic Coercion

Guideline § 5K2.0 provides, in pertinent part, that if a “defendant committed the offense

because of serious coercion, blackmail, or duress, under circumstances not amounting to a

complete defense, the court may depart downward.” The facts of this case amply demonstrate that

Joe was coerced, even extorted, into participating in the honest services fraud, for which he stands

convicted, by Greene and Creighton. See infra, Section II.2. and n. 18.

Economic coercion is a recognized affirmative defense to bribery charges. See e.g. United

States v. Miller 340 F.2d 421 (4th Cir. 1965), (“the threat of economic harm may under some

circumstance result in extortion.”). And, the Fourth Circuit subsequently ruled that the Hobbs Act

could not be used to prosecute the victim of extortion who merely acquiesced in the demand that

payments be made in order to retain his lawful right to certain business opportunities. United States

v. Spitler, 800 F.2d 1267, 1276 (4th Cir. 1986). Citing the Model Penal Code, the Court found as

follows:

It seems clear that the victim of a crime should not be held as an accomplice in [or
a conspirator to] its perpetration, even though his conduct in a sense may have
assisted in the commission of the crime and the elements of complicity or
conspiracy may technically exist. The businessman who yields to the extortion
of a racketeer, the parent who pays ransom to the kidnapper, may be unwise or may
even be thought immoral; to view them as involved in the commission of the crime
confounds the policy embodied in the prohibition; it is laid down, wholly or in part,
for their protection.

Id. (emphasis added). See also United States v. Alfisi, 308 F.3d 144, 151 n. 1 (2d Cir. 2002)

(“Our cases thus provide that a payment made in the course of a shakedown where the public

official demands payment as a quid pro quo for proper execution of his duty is not a bribe.”);

United States v. Barash, 365 F.2d 395 (2d Cir. 1966) (“We think that if a government officer

threatens serious economic loss unless paid for giving a citizen his due, the latter is entitled to have

the jury consider this, not as a complete defense like duress but as bearing on the specific intent

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required for the commission of bribery. 37 Cases from the Third, Seventh, and Ninth Circuits also

support the argument that economic coercion may negate the corrupt intent element required to

prove the crime of bribery. United States v. Friedman, 658 F.3d 342, 354 (3d Cir. 2011); United

States v. Lee, 846 F.2d 531 (9th Cir. 1988); United States v. George, 477 F.2d 508, 514 (7th Cir.

1973).

As noted above, Wanda Greene was the undisputed ring-leader and architect of the bribery

scheme. Joe, for his part, wrongly agreed to participate in the illegal conspiracy with the corrupt

County employees under the direct and credible threat that if he refused to do so, he would lose

his contracts with the County. He is culpable, but he is not nearly as culpable as Greene, Creighton,

or even Stone.

To be clear, Joe is not asking the Court to excuse or exonerate his poor choice to accede to

Greene et al.’s extortionate demands – he has pleaded guilty and fully accepts his responsibility

for his role in this scheme. But under these facts, the law recognizes the legitimate impact of

economic extortion and allows this Court to consider it in reaching a fair and just sentence under

all of the facts. We ask that the Court make a downward departure on this basis.

IV. RESTITUTION

Under 18 U.S.C. § 3664(e). it is the Government’s burden to establish whether and the

amount of any restitution due. Here, the Government has candidly conceded that it has no evidence

that any restitution is due from Joe. Wiseman Factual Basis, p. 3. 38

37At least one court has suggested that economic coercion may be a complete defense to the charge of bribery, as
opposed to an affirmative defense. See United States v. Whitman, 887 F.3d 1240 (11th Cir. 2018).

38 As the PSR notes, Buncombe County submitted a Victim Impact Statement in which it speculated that it might be
due up to $500,000. As noted in detail in the filed objection to that statement, the County has offered no basis, much
less proof, for that speculative number. As a result, the PSR appropriately noted that, as of the date of the final PSR,
“no supporting documentation has been submitted by the victim to substantiate the victim’s claim.” Addendum to
PSR.

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Even though it is not Joe’s burden to do so, we have taken the extra step of affirmative ly

proving that Buncombe County suffered no pecuniary loss as a result of Joe’s activities. See, infra,

Section II.3.(a).

For all of these reasons, no restitution has been established, is due, or should be ordered in

this case.

V. CONCLUSION

For the reasons stated herein, we ask the Court to grant a departure or variance for the

reasons stated herein. Under the facts and law of this case and a fair and reasonable application of

the factors in 18 U.S.C. § 3553(a), we believe that the Court can and should reduce Joe’s adjusted

offense level to permit the Court to consider significantly lower sentence than currently called for

in the PSR.

Finally, we ask that the Court consider the words of Joe’s oldest son, Joseph, in determining

the sentence to be imposed:

Judge Conrad, I know you have a job to do, and we understand that my dad must
make amends for the mistakes that he has made. But please understand that
whatever sentence you impose on my dad, every one of us in the Wiseman family
will also have to serve it with him. We will be the ones who do not have him there
to share in our happy life moments, and we are the ones who will have to live
without his support in the tough times.

Letter of Joseph Wiseman, August 19, 2019 (attached hereto) (emphasis added).

Respectfully submitted, this 21st day of August 2019.

DABROWNLAW LLC
/s/david a. brown, sr.
David A. Brown, Sr.
NC Bar No. 48997
360 Rosemore Place
Rock Hill, SC 29732
Dabrownsr79@gmal.com
(704) 654-9418

Page 39 of 41

Case 1:19-cr-00017-RJC-WCM Document 28 Filed 08/21/19 Page 39 of 41


PIERSON LAW, LLC

/s/ Holly A. Pierson


Holly A. Pierson
GA Bar No. 579655
3127 Maple Drive, NE
Atlanta, GA 30305
hpierson@piersonlawllc.com
(404) 353-2316

Admitted Pro Hac Vice

Page 40 of 41

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Sentencing Memorandum, with

attachments, on this, the 21st day of August, with the Clerk of Court by using the CM/ECF system,

which will send notification of such filing to counsel for the United States.

/s/ David A. Brown


David A. Brown
N.C. Bar No. 48997

Page 41 of 41

Case 1:19-cr-00017-RJC-WCM Document 28 Filed 08/21/19 Page 41 of 41


ATTORNEY WORKPRODUCT
RONALD R. TAYLOR
PRIVATE INVESTIGATOR

REPORT OF INVESTIGATION

Attorney: Holly Pierson


David Brown

Report: Memorandum of Activities

Report #: 1

In re: Joe Wiseman

Investigator Taylor was requested to conduct an investigation to determine if the lump sum
contracts negotiated by Joe Wiseman with Buncombe County were “padded” to include illegal
payments for trips and other personal expenses for Buncombe County employees.

The following is an outline of all investigative activities regarding this investigation:

Details of Investigation

Defense counsel briefed Investigator Taylor as to the details of the investigation of Wiseman.

Subsequent to these conversations, Investigator Taylor received numerous files in the possession
of defense counsel relating to the payment of the illegal payments. These documents included
various documents relating to meetings and discussions with the AUSA regarding the Wiseman
investigation, and certain contracts and spreadsheets relating to trips paid for by Wiseman during
the relevant period (2014 – 2017).

Investigator Taylor conducted a thorough examination of the documents provided by defense


counsel. After this document review, Investigator Taylor believed that a detailed analysis of the
contracts themselves would be the best approach to determine if the contracts were padded. In an
effort to validate Investigator Taylor’s investigative approach, Investigator Taylor contacted
Tony Ollmann, CPA. Ollmann is the firm director of Baker Tilly Virchow Krause, LLP a
construction risk management CPA practice headquartered in Wisconsin. Ollmann’s expertise
includes large complex construction audits, process improvement consulting, and construction
fraud prevention and detection. Ollmann also provides litigation support services and is a
frequent speaker at numerous construction, trade and audit associations. Ollmann agreed with
Investigator Taylor’s approach to the issues in the Wiseman matter, primarily that the scope of
work to be performed in the multi-year contracts should be compared with the other multi-year
contracts.

Case 1:19-cr-00017-RJC-WCM Document 28-1 Filed 08/21/19 Page 1 of 5


Investigator Taylor then conducted several detailed interviews of Wiseman regarding this issue
and requested that Wiseman provide Investigator Taylor with all contracts negotiated by
Wiseman with Buncombe County during the period 2014-2018. Investigator Taylor received a
total of 59 contracts. Investigator Taylor determined that 26 of these contracts were multi-year
(recurring) contracts and the remaining 33 contracts were yearly (non-recurring) contracts.

During Investigator Taylor’s investigation, defense counsel requested, via a FOIA request, all
documents relating to contracts negotiated with engineering firms before 2014 and all subsequent
contracts negotiated with other engineering firms after 2017. This request was made in an
attempt to obtain contracts that were negotiated before and after the period in question to
determine the price of any like scope work in these contracts.

Investigator Taylor subsequently received approximately 350 PDF documents relating to the
FOIA request from Buncombe County. These documents were reviewed and only a small
number of these documents could be identified for comparison purposes.

Investigator Taylor first attempted to examine each of the multi-year contracts and identify the
scope of work performed on each contract and compare the costs related to the scope of work
from year to year on these contracts.

Subsequent to an analysis of these contracts, Investigator Taylor contacted Wiseman and asked
for an explanation as to any differences in the price of the contracts, if it fluctuated from year to
year. Wiseman provided Investigator Taylor detailed explanations as to why the contracts
increased or decreased. As a result, Investigator Taylor requested that Wiseman provide
Investigator Taylor any documentation that would support Wiseman’s explanation for the
increase/decrease in the price of the contracts.

Investigator Taylor completed an analysis of the multi-year contracts (26 contracts) which
included Wiseman’s explanation for any increase/decrease in the contracts, and any supporting
documentation of his explanations, and found no evidence of padding in the multi-year contracts.
However, Investigator Taylor had no contracts to compare to the yearly (non-recurring) contracts
(33 contracts).

During this investigation Investigator Taylor discovered that Wiseman learned how to price lump
sum contracts while working at CDM Smith. Wiseman continued to price the lump sum
contracts he negotiated with Buncombe County using the same methodology he learned while
working at CDM Smith. The pricing of a lump sum contract includes Wiseman’s direct labor
charge (which includes a multiplier to cover the cost of overhead and profit). To arrive at the
direct labor charge, Wiseman would estimate the number of hours it would take to complete the
project and multiply this by his hourly rate. While working for CDM Smith, Wiseman’s hourly
rate was approximately $200 an hour. Wiseman’s hourly rate after he left CDM Smith was only
$175 per hour. Added to this amount would be any direct costs related to the project, such as
subcontractor fees and other necessary expenses incurred to fulfill the terms of the contract.
Subcontractor fees made up the bulk of any additional costs added to Wiseman’s estimated direct
labor charge.

Case 1:19-cr-00017-RJC-WCM Document 28-1 Filed 08/21/19 Page 2 of 5


Knowing how Wiseman calculated the contract price of his contracts, Investigator Taylor
decided to also conduct a forensics investigation of the contracts, and Wiseman’s books and
records and tax returns to determine if the contracts were padded. Investigator Taylor determined
that a forensics investigation was necessary because Investigator Taylor could not determine the
value of the single year (non-recurring) contracts, and to further corroborate his initial findings.

The results of this forensics investigation are reflected in the following chart:

2014 - 2017

Item Totals Rate

Total Contract Price (Actual)

Multi-Year Contracts (Actual) $824,840


Yearly Contracts (Actual) $1,315,550

Total Contract Price (Actual) $2,140,390


Subcontractors (Actual) -$729,669

Total Funds Available $1,410,721 $176

Total Contract Price (Forensic)

Gross Receipts ($175 Hour - Yearly Rate) $1,400,000 $175


Subcontractors (Actual) $729,669

Total Contract Price (Forensic) $2,129,669

Comparison of Contracts (Actual v Forensic)

Total Contract Price (Actual) $2,140,390


Total Contract Price (Forensic) $2,129,669

Net Income (Tax Returns)

Salary $261,000
Pensions $178,000
Net Profit (Includes Buncombe County Employees) $362,262

Net Income (Tax Returns) $801,262 $100

Case 1:19-cr-00017-RJC-WCM Document 28-1 Filed 08/21/19 Page 3 of 5


In addition to the above described investigative techniques, Investigator Taylor analyzed the
Government’s Information filed against Wiseman in an attempt to further corroborate
Investigator Taylor’s findings. The Information filed against Wiseman alleged that from 2001
through 2017, Buncombe County entered into contracts with CDM Smith totaling approximately
$13.3 million. The information further alleged that from May 2014 through February 2018,
Buncombe County paid EIC (Wiseman) approximately $1.9 million pursuant to contracts
negotiated with Wiseman.

An analysis of the Information reflected that the EIC contracts resulted in the following net
savings to Buncombe County:

Item Yearly

CDM Smith Contracts - $13.3 Million (17 Years) $782,353

EIC Contracts - $1.9 Million (4 Years) -$475,000

Yearly Net Savings to Buncombe County $307,353

Results of Investigation

Investigator Taylor conducted a thorough investigation of all available documents relating to the
payment of trips and other personal expenses by Joe Wiseman for Buncombe County employees.
Investigator Taylor also conducted a thorough investigation of the lump sum contracts negotiated
by Wiseman with Buncombe County officials.

Based on this investigation, Investigator Taylor determined the following:

1) Wiseman’s hourly labor rate was $175 per hour.


2) The hourly rate for engineering firms CDM Smith and SCS exceeded $175 per hour.
3) Wiseman included his hourly labor rate plus direct costs related to the project in his
negotiated contract price.
4) The total price of the contracts during the period 2014 - 2017 was $2,140,390.
5) The total amount Wiseman paid subcontractors during this period was $729,669.
6) The funds available to Wiseman during this period to pay all of his overhead expenses
and realize a profit was $1,410,721.
7) The hourly rate of the funds available to Wiseman to pay his overhead expenses and
realize a profit was $176 per hour.
8) In addition to his overhead expenses, Wiseman also paid for all trips and other personal
expenses for Buncombe County employees from his available funds.
9) Wiseman’s tax returns revealed that during the period 2014 - 2017 Wiseman’s business
realized a total net income of $801,264, after paying all overhead expenses and the trips
and other personal expenses paid for Buncombe County employees.

Case 1:19-cr-00017-RJC-WCM Document 28-1 Filed 08/21/19 Page 4 of 5


10) The hourly rate of Wiseman’s total net income was $100 per hour. The remaining $75 per
hour was used by Wiseman to pay all of his overhead expenses and for the trips and other
personal expenses paid for Buncombe County employees. This substantially reduced the
potential profit Wiseman could have made, had he not paid for the trips and other
personal expenses for Buncombe County employees.
11) Wiseman’s total net income of $801,264 during the period 2014 - 2017 resulted in an
average annual income of $200,315 per year.
12) Wiseman’s salary from CDM Smith during 2011 was $200,201; therefore, Wiseman’s
average annual income of $200,315 per year is consistent with what he was making while
employed at CDM Smith.
13) An analysis of the government’s Information filed against Wiseman further corroborates
Investigator Taylor’s findings. It is believed these savings were the result of Wiseman’s
lower labor rate, compared to CDM Smith’s rate and CDM Smith’s use of multiple
employees on a contract.

Conclusions

Based on my experience, my expertise, my thorough review of the relevant evidence and my


discussions with Mr. Wiseman, I have concluded, to a reasonable certainty that Mr. Wiseman did
not, and could not, have padded or inflated his contracts with Buncombe County.

Investigation completed.

_____________________________________

Ronald R. Taylor
Private Investigator
NCPPS #3863
SCPDC #2753
1235 East Boulevard
Suite E-183
Charlotte, NC 28203
704-779-3919 Cell/Text
rontaylorpi@gmail.com

Case 1:19-cr-00017-RJC-WCM Document 28-1 Filed 08/21/19 Page 5 of 5


IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION

UNITED STATES OF AMERICA, ) Crim. No. 1:19-cr-17-RJC


)
Plaintiff )
)
v. )
)
JOSEPH F. WISEMAN, JR., )
)
Defendant )
____________________________________)

LEGAL MEMORANDUM IN SUPPORT OF SENTENCING MEMORANDUM


Now Comes Joseph F. Wiseman, Jr., by and through his undersigned counsel, and submits

in the instant Legal Memorandum in Support of the Sentencing Memorandum filed

contemporaneously herewith. This memorandum is submitted to support the following legal

assertions set forth in brief in the Sentencing Memorandum: Expenses paid for in connection with

legitimate business travel and in client cultivation do not constitute bribes, even where the

payments are made to or on behalf of a state or local government employee; the North Carolina

anti-gift statute provides no basis for a federal bribery prosecution.

A. Payments Made on Behalf of State and Local Government


Officials in Connection with Legitimate Business Trips and
Legitimate Business Development are Not Illegal.

Section 666(a)(1)(B) proscribes the corrupt solicitation of anything of value by a

government official for the purpose of intending to be influenced in connection with any

business transaction or series of transactions of a government agency. Section 666(a)(2)

prohibits the “corrupt” offer of anything of value to a government official “with intent to

influence or reward” that government official in connection with any business transaction or

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transactions of a government agency. (emphasis added).Criminal liability under Section (a)(2)

is wholly dependent on whether the payments were made corruptly and with the intent to

influence the decisions of a government official. And relevant case law, as well as the legislative

history of Section 666, establishes that many payments to or on behalf of a government official

in connection with legitimate trips or for other legitimate business purposes, including but not

limited to general client entertainment/business development, do not fall within the statutes

proscriptions.

In 1986, Section 666 was amended to clarify Congressional intent and “to avoid its

possible application to acceptable commercial and business practices.” H.R.Rep. No. 99-797,

at 30, reprinted in 1986 U.S.C.C.A.N. 6138. As stated in the House Report, “18 U.S.C. § 666

prohibits bribery of certain public officials but does not seek to constrain lawful commercial

business transactions.” Thus, 18 U.S.C. § 666 prohibits corruptly giving or receiving anything

of value for the purpose of influencing or being influenced in connection with any business,

transaction, or series of transactions. The provision parallels the bank bribery provision 18

U.S.C.

§ 215.” Id. at 30 n. 9.

The elements of Section 666, which must be proven beyond a reasonable doubt, are as

follows:

(1) The defendant corruptly gave something of value to any person;

(2) with intent to influence a state governmental agency that received more
than $10,000 in federal funds in any year; (3) in connection with any business

or transaction of the agency; (4) that involved anything of value of $5,000 or

more.

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See, e.g., United States v. Apple, 927 F.Supp. 1119, 1121 (N.D. IND 1996) (setting forth jury

instruction). Similarly, the First Circuit Court of Appeals approved this recitation of the

elements of Section 666 in a case where a government official was charged with soliciting and

accepting a bribe:

First, that defendant Martínez was an agent of the Commonwealth of Puerto


Rico government whose duties included those of an elected Senator of the
Commonwealth of Puerto Rico, as charged; Second, that defendant Martínez
solicited, demanded, accepted or agreed to accept anything of value from another
person; Third, that defendant Martínez did so corruptly with the intent to be
influenced or rewarded in connection with some business, transaction or series
of transactions of the Puerto Rico government.

United States v. Fernandez, 722 F.3d 1, 17 (1st Cir. 2013).

The key elements of the charge of bribery under Section 666, then, are that the payments

were made or received corruptly and with the intent to influence the government official in

connection with an official decision. And, as the Fourth Circuit has consistently held, both

Section 666 and the general bribery statute, 18 U.S.S. § 201, require proof of a “quid pro quo,”

that is, that “the defendant must have intended for the official to engage in some specific act (or

omission) or course of action (or inaction) in return for the charged payment.” United States v.

Jennings, 160 F.3d 1006, 1019 (4th Cir. 1998) (explaining that both Section 666 and Section

201 require proof of a quid pro quo to establish the crime of bribery). “[A] payment is made

with ‘corrupt intent’ only if it was made or promised with the intent to corrupt the particular

official. Not every payment made to influence or reward an official is intended to corrupt him.”

Id. at 1018 (emphasis added).

Indeed, the Fourth Circuit has distinguished between bribery and what it characterized

as “good will favors.”

Not every gift, favor or contribution to a government or political official


constitutes bribery. It is universally recognized that bribery occurs only if the gift

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is coupled with a particular criminal intent. That intent is not supplied merely by
the fact that the gift was motivated by some generalized hope or expectation of
ultimate benefit on the part of the donor. ‘Bribery’ imports the notion of some
more or less specific quid pro quo for which the gift or contribution is offered or
accepted. This requirement of criminal intent would, of course, be satisfied if the
jury were to find a ‘course of conduct of favors and gifts flowing’ to a public
official in exchange for a pattern of official actions favorable to the donor even
though no particular gift or favor is directly connected to any particular official
act. Moreover, as the Seventh Circuit has held, it is sufficient that the gift is made
on the condition ‘that the offeree act favorably to the offeror when necessary.’
It does not follow, however, that the traditional business practice of promoting
a favorable business climate by entertaining and doing favors for potential
customers becomes bribery merely because the potential customer is the
government. Such expenditures, although inspired by the hope of greater
government business, are not intended as a quid pro quo for that business:
they are in no way conditioned upon the performance of an official act or pattern
of acts or upon the recipient's express or implied agreement to act favorably to
the donor when necessary.
United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976). Accord United States v. Harvey, 532

F.3d 326, 335 (4th Cir. 2008) (same).

The Supreme Court has also rejected the argument that bribery under Section 2011

includes “any effort to buy favor or generalized goodwill from an official who either has been,

is, or may at some unknown, unspecified later time, be in a position to act favorably to the

giver's interests.” United States v. Sun-Diamond, 526 U.S. 398, 405 (1999). As the Court noted,

under the Government’s broad interpretation of the bribery statute in that case, “a group of

farmers would violate § 201(c)(1)(A) by providing a complimentary lunch for the Secretary of

Agriculture in conjunction with his speech to the farmers concerning various matters of USDA

policy-so long as the Secretary had before him, or had in prospect, matters affecting the

1
Courts have looked to the case law pertaining to 18 U.S.C. § 201 for guidance on the proper interpretation of
Section 666. See e.g. United States v. Fernandez, 722 F.3d 1, 20 (1st Cir. 2013) (“Section 666 was born as the
stepchild of another statute, 18 U.S.C. § 201.”) (citation omitted); United States v. Jennings, supra, 160 F.3d at
1019 (4th Cir. 1998) (“a court instructing a jury on § 666(a)(2) must define the ‘corrupt intent’ element in the
same way as it would if instructing on § 201(b).”).

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farmers.” Id. at 407. Accordingly, the Court refused to read Section 201 as “a prohibition of

gifts given by reason of the donee’s office.” Id. at 408.

Mr. Wiseman’s business related expenses on behalf of Buncombe County officials

attendant to legitimate business trips and/or to general client entertainment/business

development fall squarely into “the traditional business practice of promoting a favorable

business climate by entertaining and doing favors for potential customers” and such payments,

“although inspired by the hope of greater government business, are not intended as a quid pro

quo for that business.” As such, the payments would not be actionable bribes.

Even if the payments could be charged as bribes, these payments would nonetheless not

meet the other statutory elements necessary to make them criminal. As noted, a conviction under

Section 666 requires proof that the payments were made corruptly and with the intent to influence

a government official. The word 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.” United States v. Nelson,

712 F.3d 498, 512 (11th Cir. 2013). Accord United States v. Ford, 435 F.3d 204,211 (2nd Cir.

2006) (same). See also United States v. Aguilar, 515 U.S. 593, 616-17 (1995) (“An act is done

corruptly if it's done voluntarily and intentionally to bring about either an unlawful result or a

lawful result by some unlawful method, with a hope or expectation of either financial gain or other

benefit to oneself or a benefit of another person.”) (Justice Scalia, dissenting).

But the payment of meals and entertainment expenses for government employees, in

connection with legitimate business travel or business development, does not demonstrate a

corrupt motive or an intent to influence those government employees in connection with

specific governmental action. In other words, such payments do not prove the required quid pro

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quo. See United States v. Jennings, 60 F.3d 1006, 1018-19 (4th Cir. 1998) (“One has the intent

to corrupt an official only if he makes a payment or promise with the intent to engage in a fairly

specific quid pro quo with that official.”). Accordingly, the payments by Mr. Wiseman for

meals and entertainment expenses in connection with legitimate business travel were not

intended as bribes in the manner required for a charge under Section 666.

B. The North Carolina Misdemeanor Anti-Gift Statute Does Not Support a Federal
Bribery Prosecution.
N.C.G.S § 133-32(a), the NC statute governing gratuities to public officials, provides as

follows:

(a) It shall be unlawful for any contractor, subcontractor, or supplier who:


(1) Has a contract with a governmental agency; or
(2) Has performed under such a contract within the past year; or
(3) Anticipates bidding on such a contract in the future to make gifts or to
give favors to any officer or employee of a governmental agency who is
charged with the duty of:
(1) Preparing plans, specifications, or estimates for public contract;
or
(2) Awarding or administering public contracts; or
(3) Inspecting or supervising construction.
(emphasis added).2

2
There is a serious question as to whether this statute even applies to Mr. Wiseman, who is a professional engineer.
Several provisions of the North Carolina statutes differentiate between “contractors” and architects, engineers, and
land surveyors. Indeed, Article 3 of the North Carolina General Statutes is captioned as “Regulation of Contractors
for Public Works” and subparagraph 2 of N.C.G.S. § 133-23 defines “persons” as “any individual, partnership,
corporation, association, or other entity formed for the purpose of doing business as a contractor, subcontractor, or
supplier.” By contrast, the practice of professional engineering is specifically regulated by N.C.G.S. § 89C. An
“engineer” is defined as a “person who, by reason of special knowledge and use of the mathematical, physical and
engineering sciences and the principles and methods of engineering analysis and design, acquired by engineering
education and engineering experience, is qualified to practice engineering.” N.C.G.S. § 89C-3(2).

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The provision of that subsection applicable to government employees provides as follows:

It shall also be unlawful for any officer or employee of a governmental


agency who is charged with the duty of:
(1) Preparing plans, specifications, or estimates for public contracts;
or
(2) Awarding or administering public contracts; or
(3) Inspecting or supervising construction
willfully to receive or accept any such gift or favor.
Id. (emphasis added).
The subsection applicable to government employees, who are unquestionably in the best

position to know the prohibition against receiving gifts or favors,3 requires proof of willfulness,4

whereas the statute is silent as to the criminal intent required for “contractors” to violate the

statute.5

The statutory language (or, more appropriately, the absence thereof) with regard to mens

rea is problematic: the United States Supreme Court has consistently held that, absent clear

legislative intent to the contrary, either a mens rea element must be read into a criminal statute or

the statutory provision will be held unconstitutional. And here, recent Supreme Court precedent

3
As the Indictment points out, the County had a policy prohibiting employees from accepting gifts or things of value
from persons having business dealings with the County. Indictment, para. 32. Greene, Creighton, and Stone clearly
should have been aware of that policy. But, the policy by its terms is inapplicable to Mr. Wiseman or others doing
business with the County. And, more importantly, there is no reason why Mr. Wiseman would have known of the
existence of that policy, or should have been aware of it, given the fact that not one of the County’s employees ever
protested about the fact that he was providing them with travel and entertainment during business travel and client
cultivation opportunities.
4
“Willfulness” has been defined by the United States Supreme Court as “a voluntary, intentional violation of a known
legal duty.” United States v. Pomponio, 429 U.S. 10, 12 (1976) (emphasis added). Willfulness under North Carolina
cases imposes an even higher burden: “Our courts have defined willfulness as ‘an act done deliberately and
purposefully in violation of law, and without authority, justification, or excuse.’ The term has also been defined as
more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law.” State v.
Phair, 193 N.C. App. 591, 594 (NC Appeals 2008) (citations omitted). Accord State v. Cook, 814 S.E. 2d (N.C.
Appeals 2018) (same).
.
5
By contrast, the North Carolina bribery statute, N.C.G.S. § 14-218, like the federal bribery statutes, requires proof
that the defendant acted “with the corrupt intent to influence the recipient’s action . . .” State v. Greer, 238 N.C. 325,
328 (1953). See also State v. Hair, 114 N.C. App. 464, 467 (N.C. App. 1994).

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would suggest that a mens rea requirements must be read into the N.C Statute: “The fact that the

statute does not specify any required mental state, however, does not mean that none exists. We

have repeatedly held that mere omission from a criminal enactment of any mention of criminal

intent should not be read as dispensing with it.” Elonis v. United States, 135 S. Ct. 2001, 2009

(2015) (citations and quotations omitted) (reading mens rea requirement into federal crime of

communicating threats).

The Court emphasized the “basic principle” that “wrongdoing must be conscious to be

criminal.” Id. Affirming this principle, the Court required that a mens rea requirement be read

into the statute at issue because criminal statutes must “include broadly applicable scienter

requirements, even where the statute by its terms does not contain them.” Id. (emphasis added)

(citations and quotations omitted).6

North Carolina cases also hold that statutes that do not contain a mens rea element are the

exception to the general rule that criminal convictions should not be based on an unknowing

violation of the law. State v. Welch, 232 N.C. 77, 80 (1950) (“It is axiomatic at common law that

a crime is not committed if the mind of the person doing the act is innocent. . . . [T]he existence

of guilty knowledge on the part of the accused is to be regarded as essential to criminality, even

though it is not required by the statutes in express terms.”); Letchworth v. Gay, 874 F. Supp. 107,

6
Similarly, the Court held in Staples v. United States, 511 U.S. 600 (1994) that the federal statute prohibiting
possession of a machine gun required the government to prove that the defendant had knowledge that weapon would
fire automatically, despite the absence of any mens rea element in the statute:

As we have observed, the existence of a mens rea is the rule of, rather than the exception to, the
principles of Anglo–American criminal jurisprudence. . . . Relying on the strength of the traditional
rule, we have stated that offenses that require no mens rea generally are disfavored, and have
suggested that some indication of congressional intent, express or implied, is required to dispense
with mens rea as an element of a crime.

Id. at 605-606 (emphasis added, citations and quotations omitted).

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109 (E.D.N.C. 1995) (“It offends traditional notions of justice to punish a person for an inadvertent

or negligent act when that person did not intend to commit a crime. Thus, scienter or intent should

be an element of a crime absent clear contrary legislative direction.”) (citing Welch, 232 N.C. at

80) ((emphasis added); accord State v. Atwood, 290 N.C. 266, 273 (N.C. App. 1976) (“Our

traditional rule, however, is that when the General Assembly does not specify whether guilty

knowledge, or mens rea, is required the necessity of its existence will nonetheless be implied.”).7

For all of these reasons, proof of willfulness must be shown before imposing criminal

punishment for making a gift to a NC government employee.8 Here, there is no evidence that EIC

or Mr. Wiseman acted with any such willfulness. Indeed, the evidence is to the contrary.9

7
The alternative to reading a mens rea element into the statute is to find the statute unconstitutionally vague. See e.g.
United States v. Heineman, 767 F.3d 970, 973 (10th Cir. 2014) (courts will read into a criminal statute “any scienter
necessary” to avoid declaring the statute unconstitutional); United States v. McNamara, 219 F. Supp. 757, 761 (D.C.
DC 1963) (“[A] claim that a statute on its face contains no requirement of mens rea or scienter is no ground for holding
the statute unconstitutional, since such requirement may well be read into the statute by the courts.”). Cf. Vanatta v.
Oregon Government Ethics Committee, 347 OR. 449, 468 (2009 (en banc) (statute prohibiting lobbyists from offering
gifts to public officials valued at more than $50.00 or any payment of expenses or entertainment held unconstitutional).

8
A non-exhaustive survey of anti-gift statutes from other states further demonstrates that some mens rea element is
required before a violation of the statute can result in criminal punishment. See e.g. Iowa Code §§ 68B.22(2), 68B.34
(restricted donor prohibited from making gifts to public official but prosecution of violation as a misdemeanor requires
proof that the gift was “knowingly and intentionally given.”); Virginia Code § 2.2-4377 (conviction for violation of
anti-gift statute requires proof of willfulness); Massachusetts General Law 268 § 3 (prohibition against gifts requires
proof that the donor “knowingly . . . for or because of any official act” or with the intent “to influence” such
government employee).
9
For almost 28 years, Mr. Wiseman was employed by the multi-national engineering firm, CDM/Smith, which has
both an in-house legal department and a full-time compliance officer. Yet during the entire period of his employment,
Mr. Wiseman was instructed to pay for and was routinely reimbursed for travel and entertainment for government
clients in North Carolina. Additionally, throughout his career with CDM/Smith, Mr. Wiseman witnessed and heard
anecdotal statements of other government clients being provided with gifts, such as golf outings and fishing trips, as
well as meals, travel, and entertainment on a regular basis. And, when he began working as a subcontractor for
PETRA engineering, the business practices were the same as those he had learned at CDM/Smith. None of the
government employees with whom Mr. Wiseman did business ever suggested that it would be improper for him to
pay for typical client travel and entertainment expenses or that such conduct was illegal under North Carolina law or
violated any County policy. For all of these very reasonable reasons, Mr. Wiseman believed at all times during his
career as a professional engineer, that client cultivation, while on legitimate business trips and during business
development opportunities, permitted him to pay for travel and entertainment expenses of his clients.

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For these reasons, Mr. Wiseman did not have the requisite mens rea to violate the North

Carolina anti-gift statute or of any federal crime based on the payment of travel and entertainment

expenses for government employees in connection with legitimate business or business

development trips.

C. Conclusion

For the reasons set forth in this memorandum, Mr. Wiseman could not properly be charged

with a federal bribery offense based on the payment of travel and entertainment expenses in

connection with legitimate business travel or client cultivation. Nor, could he be charged with a

federal crime based on the North Carolina anti-gift statute. Therefore, none of the travel an

entertainment expenses except the travel completely unrelated to any legitimate business activities

should be considered as relevant conduct in the sentencing of Mr. Wiseman.

Respectfully submitted, this 21st day of August 2019.

DABROWNLAW LLC
/s/david a. brown, sr.
David A. Brown, Sr.
NC Bar No. 48997
360 Rosemore Place
Rock Hill, SC 29732
Dabrownsr79@gmal.com
(704) 654-9418

Pierson Law, LLC


/s/ Holly A. Pierson
Holly A. Pierson
GA Bar No. 579655
3127 Maple Drive, NE
Atlanta, GA 30305
hpierson@piersonlawllc.com
(404) 353-2316

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