USA v. John Thomas Burnette

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13990
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN THOMAS BURNETTE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:18-cr-00076-RH-EMT-3
____________________
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2 Opinion of the Court 21-13990
Before J ORDAN, ROSENBAUM , and NEWSOM , Circuit Judges.
NEWSOM , Circuit Judge:
Real-estate developer John Burnette was convicted on mul-
tiple counts arising out of his alleged complicity in the bribery of
Tallahassee City Commissioner Scott Maddox. On appeal, Bur-
nette challenges his bribery-based convictions on several grounds,
two of which require us to carefully examine the Supreme Court’s
decision in
McDonnell v. United States, 579 U.S. 550 (2016), which
explained—and by all accounts narrowed to some degree—the cat-
egory of “official acts” that can support a federal bribery charge.
Burnette separately contests his conviction for making false state-
ments to federal agents during the course of their investigation.
After careful consideration of Burnette’s
McDonnell-related
arguments, his challenges to two evidentiary rulings, and his attack
on his false-statements conviction, we affirm.
I
John Burnette controlled a substantial real-estate syndicate
in Tallahassee, Florida. In the course of his business, he became
“friend[s]” with Tallahassee City Commissioner Scott Maddox.
Doc. 461 at 35. In 2015, the FBI initiated an undercover operation
to investigate public corruption in Tallahassee. Two agents cre-
ated a fictitious company called Southern Pines and posed as a
property developer, Michael Miller, and an investor, Michael
Sweet. Doc. 456 at 141–43, 161. “Miller” and “Sweet” befriended
Burnette and, over the course of several months, engaged in
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21-13990 Opinion of the Court 3
discussions about development opportunities with him and Mad-
dox—many of which the agents secretly recorded.
Id. at 144–45;
Doc. 440-2
passim.
Burnette, Miller, and Sweet together pinpointed two pro-
jects for further consideration. First, they would encourage Talla-
hassee officials to “annex” a parcel of land called Fallschase, which
was situated just outside the city limits, in order to increase its
value. Doc. 456 at 173–74 (Miller); Doc. 440-2 at 47–49 (Burnette).
Second, they would aim to convince officials to approve a Request
for Proposal authorizing the city to invite potential developers (like
themselves) to bid for a city-owned property called Myers Park.
Doc. 456 at 194–95 (Miller); Doc. 459 at 178–79 (Sweet); Doc. 457
at 14–15 (Miller); Doc. 440-2 at 7–9 (Burnette).
In recorded conversations in July and September 2016, Bur-
nette instructed Miller and Sweet that they would need to pay Mad-
dox for his votes on the Fallschase and Myers Park projects because
he was “very transactional” and wanted his “piece of pie.” Doc.
440-2 at 6, 21. In the September conversation, Burnette told the
agents that while they might be able to persuade the other com-
missioners “on the merits,” Maddox could “convince[]” his col-
leagues if the agents paid “$10,000 a month the next 3 years for
[Maddox] to lobby” on their behalf.
Id. at 46–48. Although at one
point Burnette counseled Miller and Sweet to wait because he
“hate[d] to see” them “spend money and not know exactly what
[they were] doing,” he emphasized that it was “money well spent”
if they were going to “do a deal here.”
Id. at 121.
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4 Opinion of the Court 21-13990
Maddox subsequently met with Miller and Sweet and agreed
to “run interference” and help them with “whatever [they]
needed”—so long as (1) Burnette remained “involved” and (2) they
paid $10,000 a month to Governance Services, a company run by
Maddox’s girlfriend, Paige Carter-Smith. Doc. 459 at 163–64;
see
also Doc. 440-2 at 99–102 (Maddox instructing Sweet to pay Gov-
ernance “so I would not be conflicted out if you had shit coming
up in front of me” and assuring Sweet that “J.T. [
i.e., Burnette] will
tell you who [Governance] is”); Doc. 453 at 246–50 (Carter-Smith
testifying that she found it “very curious that [she] was getting paid
and [she] was not being asked to do anything”). Burnette echoed
Maddox’s request that Miller and Sweet “run [payments] through
Governance.” Doc. 440-2 at 125–27;
see also id. at 121–22 (same).
In November 2016, consistent with Maddox’s instructions, the
agents sent a $10,000 check to Governance, which Carter-Smith re-
ceived. Doc. 453 at 228–30. Maddox told Burnette about the pay-
ment. Doc. 461 at 77–78.
Miller and Sweet arranged a trip to Las Vegas for them-
selves, Burnette, and Maddox in early December 2016. Doc. 460 at
127–28. While in Vegas, the four discussed both Fallschase and
Myers Park. In particular, Sweet and Burnette told Maddox (1) that
they wanted to move forward with the annexation of Fallschase,
Doc. 440-2 at 151–52, and (2) that they wanted Maddox to “throt-
tle”—
i.e., slow-roll—the Myers Park project “until the time it’s ap-
propriate for [them] to move on it,”
id. at 158. Burnette told Miller
and Sweet that Maddox would help to ensure that the city annexed
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21-13990 Opinion of the Court 5
Fallschase and delayed the Myers Park RFP.
Id. at 151, 155–58.
One other Vegas-related incident bears brief mention here: Evi-
dence in the record indicates that during the trip, Sweet bought
Maddox either a private dance or oral sex (or perhaps both) at a
strip club. As we’ll explain in due course, the district court’s deci-
sion to exclude some of that evidence forms the basis for one of
Burnette’s challenges.
Following the Las Vegas trip, the agents sent two more
$10,000 checks to Governance—one in mid-December and another
in late January. Doc. 453 at 237, 239. To be sure, Burnette occa-
sionally sent Miller and Sweet mixed messages about the pay-
ments. He twice insinuated, for instance, that he didn’t “want
[Sweet] to think that [he] can effectively pay these people and get
a[ ] vote” and that, if he did, Maddox would “just recuse himself,
and [not] vote.” Doc. 440-2 at 172;
see also Doc. 440-17 at 48–49
(similar). And Burnette emphasized his above-board wins with the
commission, once telling Sweet: “5-0 vote, did not pay a $. Talla-
hassee is just about doing the right thing.” Doc. 460 at 30–31. At
trial, Sweet testified—over objection—that he considered Bur-
nette’s comments to be “false exculpatory” statements.
Id. at 5.
All the while, though, Burnette reiterated to Miller and
Sweet that Maddox would move Fallschase through the city com-
mission in exchange for their money and, in fact, warned the agents
not to stop sending checks, for fear that Maddox—whom Burnette
called “god damn mafia” and “a revengeful mother fucker,” Doc.
440-2 at 193, 211—might engage in retribution. For instance—
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6 Opinion of the Court 21-13990
Sweet: Are you sending the checks to Maddox?
Miller: Yeah. Sending what you told me to
send.
Burnette: Let me tell you this, don’t stop that.
. . . It’ll get done. [Maddox will] get it
run through [the city manager] . . . . It’ll
be a 3-1 vote.
Id. at 192;
see also, e.g.,
id. at 193 (Sweet: “Well at this point we’ve
put him in a paycheck.” . . . Burnette: “You can’t take him out.”);
id. at 196 (Burnette on January 9, 2017: “$10,000 a month, and it’s
all going to be okay . . . [Maddox] isn’t going to vote, but he’s going
to make sure that the votes are enough.”);
id. at 198 (Sweet: “So . . .
keep Maddox on the payroll.” Burnette: “Yeah.”);
id. at 203 (Bur-
nette on March 13, 2017: “I would continue to pay [Carter-Smith]
the ten thousand dollars . . . .”); Doc. 461 at 87 (Maddox: “I told
[Carter-Smith] that I thought they were going to move forward
with Fallschase.”).
During a meeting in late March 2017, Maddox and Carter-
Smith both made statements to Miller and Sweet insisting that
Maddox was only acting in the city’s best interests and that they
considered the agents’ payments to be for legitimate purposes. Mil-
ler testified at trial that he thought Maddox was “tr[ying] to
change” the “way he presented Governance . . . like it was an arm’s
length lobbying firm,” Doc. 457 at 59, and Sweet explained his view
that Maddox “was really making false exculpatory statements
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21-13990 Opinion of the Court 7
claiming that he was just doing whatever was best for the city,”
Doc. 460 at 29. At that point, Miller and Sweet decided to termi-
nate the undercover operation and shifted to an overt investiga-
tion.
Id. In May 2017, two different FBI agents interviewed Bur-
nette about his dealings with Maddox, Miller, and Sweet. Doc. 440-
2 at 223–25.
A federal grand jury indicted Burnette, Maddox, and Carter-
Smith for their roles in the alleged bribery scheme. Maddox and
Carter-Smith pleaded guilty; Burnette didn’t. Following a 17-day
trial, a jury convicted Burnette on five counts: one of Hobbs Act
extortion, 18 U.S.C. § 1951(a); two of honest-services mail fraud, 18
U.S.C. §§ 1341, 1346; one of using a facility of interstate commerce
to facilitate unlawful activity, 18 U.S.C. § 1952(a)(3); and one of
making a material false statement to the FBI, 18 U.S.C. § 1001(a)(2).
The district court imposed a below-guidelines sentence of 36
months’ imprisonment followed by one year of supervised release.
This is Burnette’s appeal. He challenges (1) both the district
court’s jury instructions and the sufficiency of the evidence related
to his extortion and honest-services fraud convictions, (2) two of
the district court’s evidentiary rulings, and (3) the sufficiency of the
evidence underlying his false-statements conviction. We will con-
sider Burnette’s arguments in turn.
II
Two of Burnette’s challenges—one pertaining to the district
court’s jury instructions and another contesting the sufficiency of
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8 Opinion of the Court 21-13990
the evidence—turn on a definitional provision in the federal brib-
ery statute,
see 18 U.S.C. § 201, and, in particular, on the Supreme
Court’s interpretation of that statute in
McDonnell v. United
States, 579 U.S. 550 (2016). Although Burnette wasn’t charged with
bribery per se, all here agree—as they did at trial—that Burnette’s
alleged attempt to bribe Maddox underlies the Hobbs Act extortion
and honest-services-fraud charges, and that, for those purposes,
§ 201 provides the relevant definition of “bribery.”
See Skilling v.
United States, 561 U.S. 358, 404 (2010) (defining honest-services
fraud to include bribery);
Evans v. United States, 504 U.S. 255, 260,
269 (1992) (defining Hobbs Act extortion to include bribery). Be-
fore addressing Burnette’s particular arguments, we begin with a
primer on § 201 and the Supreme Court’s decision in
McDonnell.
In relevant part, the federal bribery statute’s operative pro-
vision makes it unlawful for anyone to “corruptly give[], offer[] or
promise[] anything of value to any public official . . . with intent
. . . to influence any official act.” 18 U.S.C. § 201(b)(1)(A). Im-
portantly here, the statute defines the term “official act” as follows:
[T]he term “official act” means any decision or action
on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or
which may by law be brought before any public offi-
cial, in such official’s official capacity, or in such offi-
cial’s place of trust or profit.
Id. § 201(a)(3).
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21-13990 Opinion of the Court 9
In
McDonnell, the Supreme Court clarified—and nar-
rowed—the meaning of the term “official act.” The defendant in
that case was the former governor of Virginia, who (like Burnette)
had been convicted of bribery-related Hobbs Act extortion and
honest-services fraud—there, for accepting some $175,000 in gifts,
loans, and other benefits from a local businessman in exchange for
his promise to arrange meetings, organize events, and contact
other government officials about his donor’s nutritional-supple-
ment product.
See 579 U.S. at 556–61.
Unpacking the statute’s language, the Supreme Court em-
phasized that “[t]he text of § 201(a)(3) sets forth two requirements
for an ‘official act’”:
First, the Government must identify a “question,
matter, cause, suit, proceeding or controversy” that
“may at any time be pending” or “may by law be
brought” before a public official. Second, the Gov-
ernment must prove that the public official made a
decision or took an action “on” that question, matter,
cause, suit, proceeding, or controversy, or agreed to
do so.
Id. at 567 (quoting 18 U.S.C. § 201(a)(3)). The first of § 201(a)(3)’s
two “requirements” pertains to what we’ll call the “matter” and the
second to what we’ll call the “act.”
The Court went on to detail the characteristics of the cov-
ered matters and acts. With respect to
matters, it made two im-
portant observations. First, it rejected the government’s
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10 Opinion of the Court 21-13990
contention that “nearly any activity by a public official qualifies.”
Id. at 567–68. Rather, employing the familiar
noscitur a sociis
canon of construction, the Court interpreted the general terms
“question [and] matter” by reference to the more specific terms
“cause, suit, proceeding [and] controversy.”
Id. at 568–69. Because
“a typical meeting, call, or event arranged by a public official is not
of the same stripe as”—
i.e., is not as serious as—“a lawsuit before
a court, a determination before an agency, or a hearing before a
committee,” the Court held those sorts of occurrences didn’t con-
stitute covered “question[s or] matter[s].”
Id. at 569.
Second, and separately, the Court held that a covered matter
can’t be framed at too high a “level of generality”—like, in that
case, “[e]conomic development.”
Id. Rather, it must be more spe-
cific—
i.e., “focused and concrete.”
Id. at 570. In particular, the
Court emphasized § 201(a)(3)’s condition that a matter be either
“pending” or the sort of thing that “may by law be brought” before
a “public official.”
Id. (quoting 18 U.S.C. § 201(a)(3)). That lan-
guage, the Court said, “suggest[s] something that is relatively cir-
cumscribed—the kind of thing that can be put on an agenda,
tracked for progress, and then checked off as complete.”
Id.
The
McDonnell Court separately explained—albeit more
briefly—what we have called § 201(a)(3)’s
act requirement. Recall
that § 201(a)(3) refers to “any decision or action on” a covered mat-
ter. Although, in the abstract, the terms “decision” and “action”
could be read broadly to capture ordinary steps like “setting up a
meeting, hosting an event, or calling another official,” the Court
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21-13990 Opinion of the Court 11
held that under its precedents, “something more is required.”
Id.
at 571–72. As examples of qualifying acts, the Court used illustra-
tions relevant to the case before it—“[f]or example, a decision or
action to initiate a research study[,] or a decision or action on a
qualifying step, such as narrowing down the list of potential re-
search topics.”
Id. at 572. Some acts even more clearly qualify; for
instance, although not squarely at issue in
McDonnell, no one dis-
putes (or could) that casting or abstaining from a vote on a covered
matter, or agreeing to do either, would constitute the sort of act
that triggers § 201’s prohibition.
See, e.g.,
United States v. Rob-
erson, 998 F.3d 1237, 1251–52 (11th Cir. 2021).
* * *
In sum, then,
McDonnell clarified that in order to implicate
the bribery statute’s prohibition, a public official must either en-
gage or agree to engage in (1) a sufficiently serious act—casting a
vote being the quintessential example—(2) concerning a suffi-
ciently serious and “concrete” matter.
A
Having set the table, we turn to Burnette’s
McDonnell-
based arguments. We will first address his challenges to the district
court’s jury instructions, which he contends violated
McDonnell in
two respects, and then turn to his assertion that the government
failed to present sufficient evidence to sustain his convictions on
the bribery-related counts.
1
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12 Opinion of the Court 21-13990
Burnette raises two challenges to the district court’s jury in-
struction defining the term “official act”—one general, the other
more specific. First, and more generally, Burnette argues that the
instruction failed to give the jury any meaningful guidance about
what constitutes a § 201(a)(3)-qualifying matter. Second, and more
specifically, he contends that the instruction elided the require-
ment—which he grounds in
McDonnell and its progeny—that the
government prove that Maddox agreed, in exchange for payment,
to provide assistance with “concrete,” identified matters.
McDon-
nell, 579 U.S. at 570. After setting out the official-act instruction’s
language, we will consider Burnette’s arguments in turn.
In pertinent part, the district court’s instruction provided as
follows:
An “official act” is a decision or action that involves
the formal exercise of governmental power. This
case involves only three kinds of possible official
acts. Unless you find there was an official act of one
of these three kinds, you cannot find there was an of-
ficial act.
The first is a vote on any matter that was pending or
might later come before a local governmental entity,
including the City Commission, the Community Re-
development Agency, or the Planning Commis-
sion. To count as a matter that might later come be-
fore the governmental entity, a matter need not be
identified at the time of the payment; it is sufficient if
the payment is made in exchange for favorable
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21-13990 Opinion of the Court 13
treatment on any not-yet-known matter that might
later come up for a vote.
The second kind of official act is abstaining from a
vote—that is, not voting—on the same kind of mat-
ter.
The third kind of official act is pressuring or advising
another official, including another commissioner or a
staff member, on the same kind of matter. But Mr.
Maddox’s advice to a commissioner or staff member
was an official act only if Mr. Maddox knew or in-
tended that the commissioner or staff member would
take formal action based on that advice on a matter
that could come before the local governmental en-
tity. Talking to another commissioner or staff mem-
ber or advocating a course of action, without more, is
not an official act.
* * *
Before diving in, we note two hurdles that Burnette must
overcome on appeal—the doctrines of “invited error” and “plain
error.” As to the former, we have held that “[w]hen a party agrees
with a court’s proposed instructions, the doctrine of invited error
applies.”
United States v. Frank, 599 F.3d 1221, 1240 (11th Cir.
2010). And “[i]t is a cardinal rule of appellate review that a party
may not challenge as error a ruling” that he invited.
United States
v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (quoting
United States
v. Ross, 131 F.3d 970, 988 (11th Cir. 1997)). All here agree that
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14 Opinion of the Court 21-13990
Burnette’s trial counsel invited error regarding
some aspect of the
court’s official-act instruction; the only dispute, as we will explain,
is how far the invited-error bar extends.
See Oral Arg. at 1:40–2:40.
(Burnette’s appellate counsel conceding as much).
Second, invited error aside, it is undisputed here that Bur-
nette’s trial counsel didn’t affirmatively object to the court’s in-
struction on either of the grounds that he argues on appeal. Ac-
cordingly, even with respect to any aspects of the instruction that
aren’t covered by the invited-error bar, we may review only for
plain error. To establish plain error, Burnette must show that “(1)
an error occurred; (2) the error was plain; (3) it affected his substan-
tial rights; and (4) it seriously affected the fairness of the judicial
proceedings.”
United States v. Ramirez-Flores, 743 F.3d 816, 822
(11th Cir. 2014).
a
Burnette first (and more generally) contends that the district
court’s official-act instruction failed to narrow or adequately ex-
plain § 201(a)(3)’s “matter” requirement. The instruction, he com-
plains, referred to “matter[s]” only in the starkest and most indefi-
nite way: (1) It adverted to “any matter” that “was pending or
might later come before a local government entity”; (2) it said that
“a matter” needn’t be identified at the time of payment but, rather,
that it was enough that a payment be made in exchange for favor-
able treatment on “any not-yet-known matter” that might later
come up for a vote; (3) and with respect to any theory of bribery
that involved one public official seeking to influence another, the
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21-13990 Opinion of the Court 15
instruction said only that the former must know or intend that the
latter would heed his advice on “a matter” that could later arise.
What the instruction didn’t do, Burnette insists, is capture
McDon-
nell’s requirements that a § 201(a)(3)-qualifying matter be both suf-
ficiently serious and sufficiently specific. With respect to the for-
mer, he complains, the instruction didn’t clarify that a covered mat-
ter must be “of the same stripe as a lawsuit before a court, a deter-
mination before an agency, or a hearing before a committee.”
McDonnell, 579 U.S. at 569. And with respect to the latter, it didn’t
say that a covered matter must be “relatively circumscribed—the
kind of thing that can be put on an agenda, tracked for progress,
and then checked off as complete,” advise the jury that a covered
matter must be “focused and concrete,” or otherwise warn against
defining the matter at too high a “level of generality.”
Id. at 570.
For all intents and purposes, Burnette asserts, the district court’s
official-act instruction left it to the jury to define the term “matter”
however it saw fit.
We hold that, at least in part, Burnette invited the error that
he now seeks to challenge. Here’s why: At trial, the government
proposed an official-act charge that tracked the Eleventh Circuit
pattern jury instruction. The pattern instruction defines the term
“official act” by express reference to the three illustrative examples
mentioned in
McDonnell itself—
i.e., something similar to “a law-
suit before a court, a determination before an agency, or a hearing
before a committee.”
See 579 U.S. at 569. The district court
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16 Opinion of the Court 21-13990
refused the government’s request. The court explained its decision
this way:
Judges writing opinions are explaining results in a
case. They are not always trying to express things in
language that works in jury instructions. I get it that
it’s generally safe to take the language from the Su-
preme Court and put it right in the jury instruction.
So I understand why the government’s experience is,
we do better on appeal if we just took the language
right out of [
McDonnell]. So part of the language you
have is:
It must be similar in nature to a lawsuit be-
fore a court, a determination before an agency, or a
hearing before a committee. That’s clear as mud. I
mean, it’s clear to a lawyer that reads all of these cases
and figures out what kind of thing we're talking
about.
I think what the Supreme Court was trying to do was
to tell the Justice Department in bringing prosecu-
tions and judges in ruling on—lower-court judges in
ruling on cases what kind of thing we’re talking
about, so that the government would know whether
to charge something and courts would know how to
handle the case. I don’t think anybody on the Su-
preme Court thought they were writing a standard
jury instruction. So what I did in the case was take
that language—like I said, I wrote this instruction
with [
McDonnell] open on the computer, but I tried
to apply it to the facts of this case.
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21-13990 Opinion of the Court 17
So, “similar to a hearing before a committee,” I don’t
know if any jurors have ever been to a hearing before
a committee or knows what kind of thing comes be-
fore a committee. So, I hear you. And one of the
judges of this district used to say he's never been re-
versed for giving a standard instruction. If my main
goal in the case was not to be reversed, I would just
give the standard instructions in the case.
Doc. 463 at 43–44 (emphasis added).
The government’s lawyer replied that he understood. Im-
portantly, the court then made pointed inquiries of both sides:
Court: But my instruction doesn’t leave
anything out, right?
[Government]: No, no. I think the court’s in-
struction is accurate, without a
doubt.
Court: You would like it the way it is on
the defense side, I take it. You
didn’t object to the way I had it.
[Defense]:
No, no. I think, Judge, that you
captured it. Looking at [McDon-
nell
], I understand what the court
did.
Id. at 44 (emphasis added).
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18 Opinion of the Court 21-13990
To repeat, we have held that “[w]hen a party agrees with a
court’s proposed instructions, the doctrine of invited error applies.”
Frank, 599 F.3d at 1240. But we have also traditionally construed
invited errors narrowly, so as to preserve the opportunity for ap-
pellate review in close cases.
See, e.g.,
Cherry v. Dometic Corp.,
986 F.3d 1296, 1301 (11th Cir. 2021) (holding that the invited-error
bar “is triggered only by unambiguous statements or representa-
tions”). And to that end, we have drawn some pretty fine lines dis-
tinguishing between invited and merely-unobjected-to errors in
jury instructions.
Compare, e.g.,
United States v. Silvestri, 409 F.3d
1311, 1337 (11th Cir. 2005) (holding that defense counsel’s state-
ment that a district court’s jury instructions “covered the bases”
triggered the invited-error rule),
with, e.g.,
United States v. Dortch,
696 F.3d 1104, 1112 (11th Cir. 2012) (finding no invited error and
reviewing for plain error where counsel said that he “d[id]n’t think”
he needed to review the instructions again with the court),
over-
ruled in part on other grounds by Alleyne v. United States, 570 U.S.
99 (2013).
Under our precedent, Burnette’s trial counsel’s concluding
statement—“[Y]ou captured it . . . . Looking at [
McDonnell], I un-
derstand what the court did.”—clearly constitutes an
“agree[ment]” to
something, and thus clearly invited error with re-
spect to
something. What, though, is that something? The thrust
of the colloquy between the judge and the lawyers was about
whether the official-act instruction should include
McDonnell’s
analogy to lawsuits, determinations, and hearings—which, as
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we’ve explained, bears on the required seriousness of a § 201(a)(3)-
qualifying matter. Because Burnette’s lawyer expressly “agree[d]”
that the official-act instruction didn’t need to include the analogy,
we hold that any error that the court might have committed in re-
fusing to include it was invited, and that we are accordingly pow-
erless to review it. In keeping with our precedent, though, we will
construe the invited error as extending only that far. We will con-
sider the balance of Burnette’s contention that the instruction failed
to adequately define covered “matter[s]”—namely, his argument
that it failed to convey that a matter must be sufficiently specific
and “concrete”—in connection with his second challenge.
We proceed, then, to that issue.
b
Burnette’s second challenge focuses on the following lan-
guage in the district court’s instruction: “To count as a matter that
might later come before the governmental entity,
a matter need
not be identified at the time of the payment; it is sufficient if the
payment is made in exchange for favorable treatment on any
not-
yet-known matter that might later come up for a vote.” Doc. 433
at 7–8 (emphasis added). By so charging the jury, Burnette con-
tends, the court impermissibly relieved the government of its bur-
den to prove that the transacting parties themselves identified and
agreed on a specific matter (or matters) on which Maddox would
provide his assistance in exchange for payment.
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As an initial matter, we don’t think that Burnette’s trial
counsel affirmatively
invited that alleged error. Whereas the law-
suit-determination-hearing analogy that Burnette’s lawyer gave
away pertains to the seriousness of a § 201(a)(3)-qualifying matter,
Burnette’s second challenge runs on the matter’s requisite specific-
ity—
i.e., whether it was sufficiently “focused and concrete,” 579
U.S. at 570—and the timing of its identification. In short, it tees up
a different
McDonnell-related issue. Be that as it may, it is undis-
puted that Burnette failed to object to the court’s official-act in-
struction on the ground that he now presses on appeal. Accord-
ingly, we review only for plain error—which, again, requires proof
that “(1) an error occurred; (2) the error was plain; (3) it affected
[Burnette’s] substantial rights; and (4) it seriously affected the fair-
ness of the judicial proceedings.”
Ramirez-Flores, 743 F.3d at 822.
On the merits, the parties vigorously dispute
McDonnell’s
meaning, as well as its implications for this case. For his part, Bur-
nette emphasizes the Supreme Court’s own statements about
§ 201(a)(3)-qualifying matters and their identification. With re-
spect to the nature of a covered matter itself, Burnette points to the
Court’s requirement that it be specific—
i.e., “focused and con-
crete.” 579 U.S. at 570. And with respect to identification, he
points out that the Court observed both (1) that “the Government
must identify” the covered matter and (2) that “the Government
must prove”—as relevant here—that “the public official” “agreed”
to “t[ake] an action ‘on’ that” matter.
Id. at 567. The upshot, he
contends, is clear: In order to secure a bribery-related conviction,
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the government must establish that the transacting parties agreed
among themselves that, in exchange for payment, a public official
would provide assistance on a concrete, identified matter. The dis-
trict court’s official-act instruction in this case, he says, failed to
communicate that burden, because it told jurors (1) that the
§ 201(a)(3)-covered matter “need not be identified at the time of
payment” and (2) that it was “sufficient” that they find that a pay-
ment was made to Maddox “in exchange for favorable treatment
on any not-yet-known matter that might later come up for a vote.”
The instruction, Burnette complains, left the issue of the matter’s
identification completely up in the air, impermissibly communi-
cating to the jurors that they could convict him even if they con-
cluded that Maddox never agreed to assist him, Miller, and Sweet
with any specific, identified matter.
The government offers several arguments in response.
First, it asserts that “a legislator’s promise to vote on future not-
yet-known legislative bills” in a way that favors his benefactor “will
always constitute a promise to undertake an official act” because
“[w]hatever the eventual subject of those bills, the legislator’s vote”
will
necessarily concern a sufficiently concrete matter. Br. of Ap-
pellee at 25–26. Thus, the argument goes, because the district
court’s instruction here properly adverted to
McDonnell-covered
acts—
e.g., “vote[s]”—it must also implicitly have narrowed the
range of covered matters. Second, the government insists that
nothing in either
McDonnell or our follow-on decision in
Roberson
necessarily requires it to prove that the parties themselves
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22 Opinion of the Court 21-13990
identified a particular matter at the time of their agreement or pre-
cludes it from “identify[ing]” the pertinent matter after the fact, so
to speak, “at trial.” Br. of Appellee at 28 (quoting
United States v.
Van Buren, 940 F.3d 1192, 1204 (11th Cir. 2019)). Finally, and per-
haps most significantly, the government emphasizes that it “relied
on an ‘as-the-opportunities-arise’ theory of bribery in this case”—
which, it explains, “occurs when a person bribes an individual or
entity in exchange for a continuing course of conduct.” Br. of Ap-
pellee at 18 (quoting
Roberson, 998 F.3d at 1245 n.10). And the
government notes, correctly, that we observed in
Roberson that
McDonnell “did not reject the retainer theory of bribery,” 998 F.3d
at 1251—a fraternal (if not quite identical) twin of the as-the-oppor-
tunities-arise theory.
As the parties’ competing contentions reflect, there is
a lot
to be said about the meaning and import of the Supreme Court’s
decision in
McDonnell. And there is, we confess, some temptation
to attempt an overarching explanation of how
McDonnell applies
in cases like this one and, in particular, what it might portend for
the traditional retainer and as-the-opportunities-arise theories of
bribery. But the passive virtues are virtues for a reason. We con-
clude that we needn’t definitively decide at Step 1 of the plain-error
standard whether the district court’s instruction impermissibly re-
lieved the government of its burden to prove that Maddox agreed
to assist Burnette with particular, identified matters, or even, at
Step 2, whether any such error was “plain”—because we hold that
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any error that occurred didn’t affect Burnette’s substantial rights at
Step 3.
“To show that an instructional error affected his substantial
rights” at Step 3 of the plain-error analysis, “a defendant must show
that the error ‘was probably responsible for an incorrect verdict.’”
United States v. Iriele, 977 F.3d 1155, 1179 (11th Cir. 2020) (quoting
United States v. Whyte, 928 F.3d 1317, 1332 (11th Cir. 2019)). Put
slightly differently, the defendant must establish “a reasonable
probability of a different result but for the error.”
Id.
Burnette hasn’t met that standard. For reasons that we will
detail more thoroughly in the next section, addressing Burnette’s
sufficiency-of-the-evidence challenge, the proof at trial convinc-
ingly demonstrated that Burnette facilitated the $10,000 payments
to Maddox in November 2016, January 2017, and February 2017.
See Doc. 453 at 228–30, 239, 242. Importantly, the evidence also
demonstrated that Maddox understood at the time that those pay-
ments were made in exchange for his assistance with two specific
development projects—Fallschase and Myers Park.
See, e.g., Doc.
461 at 77–78 (Maddox testifying that he told Burnette about the
November check to Governance); Doc. 440-2 at 151–52, 155–58
(Maddox and Burnette discussing Fallschase with the agents in Las
Vegas after the November check was paid);
id. at 192 (Burnette
confirming that, in exchange for the checks, “It’ll be a 3-1 vote” to
annex Fallschase);
id. at 196 (Burnette stating that it’s “$10,000 a
month, and it’s all going to be okay” and that Maddox “isn’t going
to vote, but he’s going to make sure that the votes are enough”).
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No one disputes that the Fallschase and Myers Park projects
constitute concrete, identifiable “matters” within the meaning of
§ 201(a)(3) as interpreted in
McDonnell. Accordingly, even if the
district court had instructed the jury as Burnette says it should
have—as relevant here, by clarifying that the government had to
prove that the parties identified and agreed on the particular mat-
ter(s) that Maddox would seek to influence—it is overwhelmingly
likely that the jury would have convicted Burnette anyway. And
where, as here, “the defendant’s guilt would have been clear under
the correct instruction, he loses under the substantial rights third
prong of plain error review.”
Iriele, 977 F.3d at 1179.
* * *
For all these reasons, we find ourselves constrained to reject
Burnette’s challenges to the district court’s official-act instruction,
though for reasons having little to do with their merits (or demer-
its). First, to the extent that Burnette now contends that the court
erred in declining to include
McDonnell’s lawsuit-determination-
hearing analogy as a means of explaining that a § 201(a)(3) matter
must be sufficiently serious, we hold that his trial counsel invited
the error. Second, and separately, we hold that we needn’t decide
whether the court should have more clearly instructed the jury that
the government had to prove that the parties agreed, in advance,
that Maddox would provide assistance on concrete, identified mat-
ters because, in any event, its failure to do so didn’t affect Bur-
nette’s substantial rights.
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B
Burnette separately—but relatedly—contends that he was
entitled to a judgment of acquittal on the bribery-related counts
because the government failed to prove that Maddox agreed to as-
sist Burnette with a particular “matter,” as
McDonnell defined (and
as we have explained) that term. We disagree.
In considering sufficiency-of-the-evidence claims like Bur-
nette’s, we employ an indulgent standard. “[W]e view the evi-
dence in the light most favorable to the prosecution and draw ‘all
reasonable inferences and credibility choices’ in its favor.”
United
States v. Fleury, 20 F.4th 1353, 1367 (11th Cir. 2021) (citations omit-
ted). The evidence need not “be inconsistent with ‘every reasona-
ble hypothesis except guilt.’”
Id. (citations omitted). Rather, it is
enough that “
any rational trier of fact could have found the essen-
tial element of the crime beyond a reasonable doubt.”
Id. (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, a guilty
verdict need only “be reasonable, not inevitable, based on the evi-
dence presented at trial.”
United States v. Browne, 505 F.3d 1229,
1253 (11th Cir. 2007).
Under that standard, the evidence was sufficient to permit a
reasonable jury to conclude that Maddox agreed to perform an of-
ficial act in connection with a
McDonnell-qualifying matter. Bur-
nette makes two arguments to resist that conclusion. Neither con-
vinces us.
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26 Opinion of the Court 21-13990
First, he cites snippets of trial testimony that he claims show
that the undercover agents purported only “to buy generic ac-
cess”—an “arrangement with Maddox divorced from any particu-
lar matter.” Br. of Appellant at 24–25. But the government pre-
sented ample evidence from which a reasonable jury could have
found, to the contrary, that Burnette met with both Maddox and
the agents to arrange for a series of $10,000 payments to Maddox’s
girlfriend’s company in order to secure Maddox’s vote (or absten-
tion) in connection with the Fallschase and Myers Park projects.
See, e.g.,
supra at 23 (collecting record citations supporting the
three payments); Doc. 440-2 at 87–89 (Sweet asking how to “fill
Maddox’s coffers” and Burnette answering that “Maddox has a con-
sulting [firm]”);
id. at 99–100 (Maddox discussing Myers Park with
Sweet on October 4, 2016 while mentioning “somebody [Sweet]
can hire” that was “not [Maddox]”);
id. at 110 (Maddox: “[T]here’s
more than that just one deal. There’s [sic] two or three deals here
that make total sense.”);
id. at 151–59 (Maddox, Burnette, and
Sweet discussing Fallschase and Myers Park in December 2016, af-
ter the first payment);
id. at 51 (Burnette and Sweet discussing seal-
ing the real-estate deal because “the check’s already been written
in the back door to Scott Maddox”);
id. at 121–22 (Burnette: “[I]t’s
definitely for Maddox, there’s nobody else in Governance other
than Paige [Carter-Smith], which is Maddox effectively, indi-
rectly.”);
id. at 125–27 (Sweet: “[D]oes he not want paid?” Bur-
nette: “No, no, he does. He wants to get paid. . . . Mike and I talked
about that and run that through Governance.”); Doc. 461 at 87
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21-13990 Opinion of the Court 27
(Maddox: “I told [Carter-Smith] that I thought they were going to
move forward with Fallschase.”).
Second, and seemingly in acknowledgment of the fact that
the record contains evidence regarding Fallschase and Myers Park,
Burnette contends that “[t]o the extent the agents discussed partic-
ular projects with Burnette or Maddox, those projects did not re-
quire Maddox’s help.” Br. of Appellant at 25. Two problems. For
one, in the same way that bribery liability doesn’t depend on
whether a public official ultimately performed an official act,
cf.
Ev-
ans, 504 U.S. at 268, it doesn’t turn on the bribe’s actual or expected
effectiveness. All that matters is that, in exchange for something of
value, the official agreed to perform an act concerning a sufficiently
serious and concrete matter.
See McDonnell, 579 U.S. at 572;
cf.
United States v. Kimbrew, 944 F.3d 810, 815–16 (9th Cir. 2019) (“In
short, execution is immaterial. It logically follows, then, that § 201
liability is not limited by the odds of success of the
quo at issue.”).1
For another, there was ample evidence in the record from which a
reasonable jury could have concluded that neither the annexation
of Fallschase nor the “throttl[ing]” of the Myers Park RFP was quite
the fait accompli that Burnette now suggests—or, at the very least,
1 This case is the flip side of
Kimbrew. There, the court rejected a defendant’s
contention that he couldn’t be held liable under
McDonnell where there was
no evidence that he could have actually achieved the task that he allegedly was
bribed to do.
See 944 F.3d at 814–16. By parity of reasoning, Burnette can’t
avoid liability by arguing that there was no evidence that Maddox was needed
for the task that Burnette facilitated bribing him to undertake.
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28 Opinion of the Court 21-13990
that the payments to Maddox provided some assurance that he
would undertake official acts in connection with those matters.
See, e.g., Doc. 456 at 195 (Miller: “[Burnette is] explaining to us that
Scott Maddox is one of those votes and essentially controls two ad-
ditional votes.”); Doc. 440-2 at 192 (Burnette confirming that, in
exchange for the checks, “It’ll be a 3-1 vote”);
id. at 196 (“[Maddox
is] going to make sure that the votes are enough.”);
id. at 151–59
(Maddox, Burnette, and Sweet discussing Fallschase and Myers
Park in December 2016, after the first payment);
id. at 51 (Burnette
and Sweet talking about sealing the real-estate deal because “the
check’s already been written in the back door to Scott Maddox”).
Viewing the evidence in the light most favorable to the gov-
ernment—and the verdict—we conclude that a rational jury could
have found that Burnette agreed to facilitate the bribery of Maddox
to act on a matter (or matters) that satisfied
McDonnell’s require-
ments.
* * *
Burnette has presented serious
McDonnell-based challenges
to his extortion and honest-services-fraud convictions. In the end,
though, we conclude (1) that any uninvited error the district court
made in instructing the jury regarding the nature of § 201(a)(3)-
qualifying “official act[s],” even if plain, didn’t affect Burnette’s sub-
stantial rights, and (2) that the evidence at trial was sufficient to
support Burnette’s conviction on a proper understanding of the
term “official act.”
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III
Burnette next challenges his convictions on two evidentiary
grounds. First, he contends that the district court erroneously ex-
cluded salacious evidence about Sweet’s conduct during the under-
cover investigation. Second, Burnette asserts that the court
wrongly admitted Sweet’s testimony accusing him of making “false
exculpatory statements” in an effort to exonerate himself once he
suspected that Sweet might be operating undercover. We review
both rulings for abuse of discretion.
See United States v. Hender-
son, 409 F.3d 1293, 1297 (11th Cir. 2005). Under the deferential
abuse-of-discretion standard, “we will affirm even if ‘we would
have decided the other way if it had been our choice.’”
Yellow
Pages Photos, Inc. v. Ziplocal, LP, 846 F.3d 1159, 1163 (11th Cir.
2017) (citation omitted).
A
Shortly before trial began, the government disclosed to Bur-
nette’s defense team that Maddox had informed prosecutors that
Sweet bought him a private dance and oral sex at a strip club during
the Las Vegas trip. Confronted with Maddox’s allegations, Sweet
initially denied them. Prosecutors then sent Sweet an audio re-
cording from the evening in question in an effort to refresh his rec-
ollection. On the recording, Sweet can be heard saying, “I just paid
$750 for [Maddox] to get fucked,” and then someone—either Sweet
or another agent, the district court couldn’t tell—said, “Well, not
get fucked.” Having listened to the recording, Sweet admitted to
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30 Opinion of the Court 21-13990
buying Maddox a dance but denied paying for him to receive oral
sex.
In response to the government’s motion in limine, the dis-
trict court ruled that Burnette’s lawyers could ask Sweet whether
he bought Maddox a dance, but it prohibited them from question-
ing him about the oral sex and it excluded the audio recording. The
court based its decision on Federal Rules of Evidence 608(b) and
403. We will address those Rules and their application here in turn.
Although we are skeptical of the district court’s Rule 608(b) ruling,
we conclude that Burnette can’t surmount the double hurdle of
Rules 608(b) and 403 and that, in any event, the court didn’t abuse
its discretion in excluding the evidence.
In pertinent part, Rule 608(b) states that “extrinsic evidence
is not admissible to prove specific instances of a witness’s conduct
in order to attack . . . [a] witness’s character for truthfulness.” Fed.
R. Evid. 608(b). Burnette insists that he sought to introduce the
oral-sex evidence not to impugn Sweet’s general “character for
truthfulness” but, rather, to “undercut Sweet’s credibility as a sup-
posedly unbiased witness
in this case.” Br. of Appellant at 50. In
particular, Burnette contends (1) that “Sweet’s actions suggested
that he was willing to go to extraordinary lengths—even to break
the law—to get Maddox and Burnette,” (2) that Sweet’s alleged
lawbreaking “gave him a motive to shade his testimony to harm
Maddox and Burnette in order to justify his unlawful actions or un-
dermine the credibility of the allegations against him,” and (3) that
“his apparent lie to the prosecutors further revealed his bias and
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21-13990 Opinion of the Court 31
would have destroyed his credibility as the government’s star wit-
ness.”
Id. at 51.
For its part, the government asserts that “[d]espite what he
claims on appeal,” Burnette
actually sought to attack Sweet’s “char-
acter for truthfulness” within the meaning of Rule 608(b). Br. of
Appellee at 41. For support, the government points to Burnette’s
lawyers’ statements to the district court that they would use the
oral-sex evidence to “impeach” Sweet and show that he had “lied”
to prosecutors about his conduct during the investigation.
Id. at
39, 42. But those descriptions do not
ipso facto show a violation of
Rule 608(b): “[I]mpeach[ment]” evidence—even impeachment ev-
idence aimed specifically at demonstrating a witness’s “lie[s]”—
could bear just as easily on the witness’s
credibility and
bias as on
his general
character for truthfulness.
The distinction between a witness’s credibility or bias, on
the one hand, and his character for truthfulness, on the other, is
real, as both the Supreme Court and this Court have recognized.
See, e.g.,
United States v. Abel, 469 U.S. 45, 56 (1984) (distinguish-
ing between extrinsic evidence presented to demonstrate a wit-
ness’s “bias,” which Rule 608(b) permits, and evidence presented
to show his lack of “veracity,” which the Rule prohibits);
United
States v. Drury, 396 F.3d 1303, 1315 (11th Cir. 2005) (“An ‘attack’
that consists only of ‘[g]overnment counsel pointing out inconsist-
encies in testimony and arguing that the accused’s testimony is not
credible does not constitute an attack on the accused’s reputation
for truthfulness within the meaning of Rule 608.’”) (quoting
United
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32 Opinion of the Court 21-13990
States v. Danehy, 680 F.2d 1311, 1314 (11th Cir. 1982)). And in-
deed, Rule 608(b) was amended in 2003 specifically to underscore
that distinction; its language was altered to substitute the phrase
“character for truthfulness” for the word “credibility.”
See Fed. R.
Evid. 608(b) advisory committee’s note to 2003 amendments. Ac-
cordingly, under the amended Rule, “the absolute prohibition on
extrinsic evidence applies
only when the sole reason for proffering
th[e] evidence is to attack or support the witness’ character for
truthfulness.”
Id. (emphasis added);
see also United States v.
Carthen, 906 F.3d 1315, 1325 (11th Cir. 2018) (W. Pryor, C.J., con-
curring) (emphasizing that, as amended, “[t]he Rule does not speak
to anything other than the use of extrinsic evidence to support or
attack a witness’s character for truthfulness”).
Having said that, the line between evidence used to impeach
a witness on the ground that he is biased or lacks credibility and
evidence presented to show that he has a tendency to lie more gen-
erally is a fine (and hazy) one. The one can very easily bleed into—
and reasonably be understood as focusing on—the other. And for
that reason, we have been reluctant to hold that district courts have
abused their discretion in deciding Rule 608(b) issues.
See, e.g.,
United States v. Ochoa, 941 F.3d 1074, 1094 (11th Cir. 2019);
Carthen, 906 F.3d at 1320–21;
Drury, 396 F.3d at 1315;
United
States v. Novaton, 271 F.3d 968, 1004–07 (11th Cir. 2001);
United
States v. Gonzalez, 71 F.3d 819, 836 (11th Cir. 1996),
abrogated on
other grounds,
Davis v. United States, 564 U.S. 229 (2011);
United
States v. Smalley, 754 F.2d 944, 951 (11th Cir. 1985). So too here.
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21-13990 Opinion of the Court 33
The district court reasonably (if perhaps incorrectly) concluded
that questioning and extrinsic evidence related to Sweet’s alleged
conduct in purchasing oral sex for Maddox, as well as his subse-
quent denial, bore on his “character for truthfulness” within the
meaning of Rule 608(b). Even if we might “have decided the other
way if it had been our choice,”
Yellow Pages Photos, 846 F.3d at
1163, we cannot say that the district court abused its discretion.
That is especially so in light of the court’s invocation of Rule
403 alongside Rule 608(b). The former provides that “[t]he court
may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Fed.
R. Evid. 403. We have repeatedly held that evidentiary determina-
tions under Rule 403’s balancing test are “largely committed to the
discretion of the district court[s].”
United States v. Lopez, 649 F.3d
1222, 1247 (11th Cir. 2011).
Burnette insists that “[e]vidence that Sweet broke the law to
ingratiate himself with and/or ensnare Maddox and then lied after
being caught was highly probative of his credibility and bias with
respect to this investigation and its targets.” Reply Br. of Appellant
at 22. There are, however, two substantial counters. First, the pro-
bative value of the oral-sex evidence—particularly to Burnette’s
theory that Sweet sought to “ensnare” either him or Maddox—is
diminished by the fact, confirmed by Burnette’s lawyers at trial,
that they were
not pursuing an entrapment defense. Second,
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34 Opinion of the Court 21-13990
introduction of the evidence most definitely risked (at the very
least) “confusing the issues,” “misleading the jury,” and “undu[ly]
delay[ing]” the proceedings. Fed. R. Evid. 403;
see also Noel
Shows, Inc. v. United States, 721 F.2d 327, 329 (11th Cir. 1983). The
district court reasonably concluded that if it allowed questioning
and admitted evidence about Sweet’s alleged sex-act purchase, the
proceedings would have devolved into a sideshow mini-trial—for
instance, about what the recording actually revealed: Even if
Sweet said, “I just paid $750 for [Maddox] to get fucked,” who—
Sweet or someone else—uttered the follow-up, “Well, not get
fucked”? And if it was Sweet, what import—that he had only pur-
chased oral sex rather than intercourse, that he had caught himself
and retreated having realized that he was on tape, or something
else?
Cf.
Anderson v. WBMG-42, 253 F.3d 561, 567 (11th Cir. 2001)
(excluding evidence that “would have in effect generated a mini-
trial on collateral issues” based on Rule 403). Given the evidence’s
limited probative value and the specter of a “trial within a trial,” we
can’t say that the district court abused its considerable discretion in
concluding that Rule 403 justified its exclusion.
B
Burnette separately challenges the district court’s refusal to
exclude portions of Sweet’s testimony in which he opined that Bur-
nette made “false exculpatory statements” when, having guessed
that Miller and Sweet were undercover, he seemed to backtrack on
the bribery scheme. For instance, during a recorded December
2016 telephone call, Burnette told Sweet that he didn’t want him
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21-13990 Opinion of the Court 35
“to think that [Sweet could] effectively pay these people and get a[]
vote.” On direct examination, Sweet characterized Burnette’s re-
mark as a “false exculpatory statement”:
I immediately thought [that] this was what we call a
false exculpatory statement. “Exculpatory” means to
remove from guilt; “false exculpatory” means it’s a
false statement being made about guilt, removing
one’s self from guilt.
As soon as I heard this phone call and I knew Mr.
Maddox’s concerns about us being potential FBI
agents, maybe even having recorded him, I immedi-
ately thought to myself, okay, this is the false excul-
patory statement that they are making to me.
Doc. 460 at 5.
Sweet followed up by saying that he thought Burnette’s
statement was part of a “completely . . . false exculpatory tele-
phone call.”
Id. at 13. In the same way, Sweet testified that a text
message in which Burnette wrote that he “did not pay a $” for votes
was a “false exculpatory comment[].”
Id. at 31.
Burnette contends that by allowing Sweet’s testimony, the
district court impermissibly allowed him to opine on another’s
truthfulness in violation of Federal Rules of Evidence 401, 602, and
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36 Opinion of the Court 21-13990
608(a).2 For support, he points, for instance, to
United States v.
Schmitz, in which we held that Rule 608(a) “does not permit a wit-
ness to testify that another witness was truthful or not on a specific
occasion,” that Rule 602 prohibits lay witnesses from testifying to
matters with respect to which they lack “personal knowledge,” and
that under Rule 401’s general relevance standard, “one witness’s
opinion that another person has or has not lied does not make it
more or less likely that the person actually lied.” 634 F.3d 1247,
1268–69 (11th Cir. 2011);
see also, e.g.,
United States v. Rivera, 780
F.3d 1084, 1097 (11th Cir. 2015) (observing that a “prosecutor
. . . cannot” ask one person—there, the defendant himself—
“whether a particular witness was lying”).
For its part, the government points to
United States v. Hen-
derson, in which we held that even though, as a general matter,
2 One housekeeping item: The government asserts that Burnette failed to pre-
serve his challenge to Sweet’s “false exculpatory” testimony, both because his
lawyers didn’t object every time Burnette used that term and because, when
they did, they objected on “speculation” grounds. We hold that Burnette’s
lawyers did enough. First, having brought the false-exculpatory issue to the
district court’s attention and obtained rulings on their objections, Burnette’s
lawyers didn’t need to continue to beat the drum.
See Fed. R. Evid. 103(b);
United States v. Hoffer, 129 F.3d 1196, 1202–03 (11th Cir. 1997) (holding that
objections were preserved where they “were sufficient to allow the district
court to correct any errors”). Second, Burnette’s lawyers’ “speculation”-based
objections were sufficiently related to—and thus adequate to preserve—the
improper-opinion-related arguments that Burnette now makes on appeal.
See, e.g.,
United States v. Schmitz, 634 F.3d 1247, 1268–69 (11th Cir. 2011)
(holding that one witness’s opinion that another has lied was improper be-
cause it lay “beyond the personal knowledge of the witness”).
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21-13990 Opinion of the Court 37
one witness can’t testify about another witness’s truthfulness, a dis-
trict court doesn’t err when it permits a law-enforcement officer to
explain the manner in which he conducted his investigation, even
if his testimony incidentally bears on another witness’s credibility.
409 F.3d at 1299. That, the government says, is how to understand
Sweet’s false-exculpatory testimony here: Throughout the trial,
Burnette insinuated that the agents had coaxed him to engage in
bribery and, indeed, that they had continued to pursue him even in
the face of his statements disclaiming a desire (or need) to pay Mad-
dox. The agents persisted in their investigation, Sweet testified,
because they thought that Burnette was feeding them “false excul-
patory statements.”
We needn’t choose between the parties’ competing inter-
pretations of Sweet’s testimony or decide whether the district court
erred in allowing it because we conclude that any error that might
have occurred was harmless. “An evidentiary error ‘is harmless
unless there is a reasonable likelihood that [it] affected the defend-
ant’s substantial rights.’”
United States v. Frediani, 790 F.3d 1196,
1202 (11th Cir. 2015) (quoting
United States v. Hands, 184 F.3d
1322, 1329 (11th Cir. 1999)). Accordingly, “[w]e need not reverse
[Burnette’s] conviction if the [alleged] error had no substantial in-
fluence on the outcome and sufficient evidence uninfected by the
error supports the verdict.”
Id. (quoting
Hands, 184 F.3d at 1329).
In making that determination, we must “weigh[] the record as a
whole, examining ‘the facts, the trial context of the [alleged] error,
and the prejudice created thereby as juxtaposed against the
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38 Opinion of the Court 21-13990
strength of the evidence of defendant’s guilt.’”
Hands, 184 F.3d at
1329 (quoting
United States v. Reed, 700 F.2d 638, 646 (11th Cir.
1983)).
We think it exceedingly unlikely that the jury’s verdict in
this case rose or fell on its assessment of Sweet’s false-exculpatory
testimony. In one of the cases on which Burnette principally relies,
we observed that “[t]his [C]ircuit has found even prejudicial non-
constitutional error harmless in criminal cases in which the govern-
ment has presented highly convincing, admissible evidence of a de-
fendant’s guilt, such as . . .
audiotapes or videotapes of the defend-
ant engaging in or discussing the alleged criminal activity . . . .”
Id.
(emphasis added) (citing
United States v. Wilson, 149 F.3d 1298,
1302 (11th Cir. 1998)). There, we found it significant that “[t]he
government presented no similarly compelling pieces of evidence.”
Id. Here, by contrast, as already explained in detail in connection
with Burnette’s other challenges, there is ample evidence—includ-
ing plenty of recorded audio—detailing Burnette’s involvement in
the plans to bribe Maddox.
See supra at 23, 26–28.
IV
Burnette raises one final challenge: He contends that the ev-
idence was insufficient to support his conviction under 18 U.S.C.
§ 1001(a)(2) for making false statements to FBI agents during a May
2017 interview regarding his involvement in the bribery scheme.
For the following reasons, we disagree.
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21-13990 Opinion of the Court 39
Burnette’s false-statements conviction was based on an-
swers that he gave in response to five questions the agents put to
him. Burnette asserts that all five of the agents’ questions were
ambiguous—three of them “fundamentally” so and the remaining
two at least “arguably” so. The distinction between
fundamental
and
arguable ambiguity is important because it affects our review
of the jury’s general verdict on the false-statements count, which
doesn’t distinguish among Burnette’s five responses.
The parties here agree that, under our precedent, if a ques-
tion “is so vague as to be ‘fundamentally ambiguous,’ the answers
associated with” it are “insufficient as a matter of law to support [a]
perjury conviction”—or, as here, a false-statements conviction.
United States v. Manapat, 928 F.2d 1097, 1099 (11th Cir. 1991)
(quoting
United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986)).
Accordingly, and in light of the jury’s general verdict, if even one
of the agents’ questions to Burnette was fundamentally ambigu-
ous, the false-statements conviction cannot stand.
Cf. United
States v. Pendergraft, 297 F.3d 1198, 1210 (11th Cir. 2002) (vacating
a general verdict for a multiple-object conspiracy on the ground
that one of the conspiracy theories was contrary to law).
By contrast, if “a question is only
arguably ambiguous and
‘an answer would be true on one construction of [the] question but
false on another . . . the defendant’s understanding of the question
is a matter for the jury to decide.’”
United States v. Swindall, 971
F.2d 1531, 1553 (11th Cir. 1992) (quoting
United States v. Bell, 623
F.2d 1132, 1136 (5th Cir. 1980) (quotation marks omitted)). “In
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40 Opinion of the Court 21-13990
such a situation, we review under the same sufficiency-of-the-evi-
dence standard used for a jury’s determination of falsity.”
Id. Ac-
cordingly, absent any fundamental ambiguity, the jury’s general
verdict must stand if the evidence is sufficient to support a convic-
tion based on
any of the statements that Burnette made, even in
response to a question that might have been arguably ambiguous.
Cf. Griffin v. United States, 502 U.S. 46, 56–57 (1991) (distinguish-
ing between legal and factual insufficiencies in relation to general
criminal verdicts).
We first consider whether any of the questions on which
Burnette focuses was, as he contends, fundamentally ambiguous.
A question satisfies the high fundamental-ambiguity bar only if it
lacked “a meaning about which men of ordinary intellect could
agree” and couldn’t “be used with mutual understanding by a ques-
tioner and answerer unless it were defined at the time [the answers]
were sought.”
Manapat, 928 F.2d at 1100 (quotations and citations
omitted). Burnette highlights three instances in which he says the
agents asked fundamentally ambiguous questions. First, and with
our emphasis added—
Agent: Okay. Who did you recommend?
Burnette: I recommended, uh, Paige Carter-
Smith—and—that was it.
Agent:
Okay. Who, is she with a firm or with
. . . Is she on her own?
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21-13990 Opinion of the Court 41
Burnette:
She . . . used to be with—I don’t even
know the name of the firm.
Doc. 440-2 at 223. Second—
Burnette: Um, but, like, I mean, I hate to say it.
Like, they didn’t know, like, who the
right—I mean—like, they hired, like,
Adam Corey, okay?
Agent: They did hire Adam Corey?
* * *
Burnette: So, you know, Adam is a lobbyist. I
don’t—I mean, he’s not like the best lob-
byist in the world. (Laughter)
Burnette: Um, so, I mean, they just—they didn’t
really seem to know what they were do-
ing.
Agent:
Okay. Do you know did they retain
anybody?
Burnette:
I do not know who they retained.
Id. at 223–24. And finally—
Agent: Sorry. Corey introduced them to Mad-
dox and you did as well?
Burnette: I was told that Maddox, they—that they
were introduced to Maddox.
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42 Opinion of the Court 21-13990
* * *
Agent:
Do you know the content of their con-
versa—what did they want from Mad-
dox or what did—
Burnette:
I don’t know the answer to that.
Id. at 224.
None of the questions to which Burnette points was funda-
mentally—as opposed to just arguably—ambiguous. The last
seems to us the most ambiguous of the three: “Do you know the
content of their conversa—what did they want from Maddox or
what did—?” At worst, though, this question asked one of two
things: (1) what the agents discussed with Maddox, or (2) what Bur-
nette understood the agents wanted from Maddox. To be sure, the
inquiry was imperfectly framed and executed. But it wasn’t
funda-
mentally ambiguous within the meaning of our precedent. Com-
pare the following question, which we deemed only
arguably am-
biguous in
Swindall:
Do you have a specific recollection about engaging in
a conversation wherein it was discussed a money trail
or the ramifications of the money trail from [an
agent’s] sources to ultimately you and what potential
liability would exist or you would be exposed to?
971 F.2d at 1553. If that twisted, asyntactical garble was only argu-
ably ambiguous, we don’t see how the third of the three questions
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21-13990 Opinion of the Court 43
that Burnette emphasizes—to say nothing of the first and second—
could be fundamentally ambiguous.3
Because we aren’t confronted with any fundamental ambi-
guity, the question in reviewing the jury’s general verdict is simply
whether the evidence was sufficient to permit a reasonable fact-
finder to conclude that Burnette made a false statement in response
to
any of the agents’ five queries. In short, it was. Take, for in-
stance, the following exchange, which not even Burnette contends
included a fundamentally ambiguous question:
Burnette: [S]o all [Sweet] would do is he hired
lobbyists. . . . So they work with lobby-
ists in Tallahassee—
Agent: Who did he—did he—oh, he did? Who
did he hire?
Burnette: I—let me say this. I don’t know who
they ever wrote a check to.
3 For the sake of completeness, neither of the first two questions is fundamen-
tally ambiguous, either. With respect to the first, Burnette asserts that because
Carter-Smith owned and operated Governance, it was fundamentally ambig-
uous whether she was “on her own” or “with a firm.” Ordinary people,
though, could clearly agree that the agent wanted to know whether Carter-
Smith worked as a solo practitioner or with others. With respect to the sec-
ond, Burnette contends that the word “retain[]” is fundamentally ambiguous.
Again, ordinary people could certainly agree that it simply meant “hire.” And
remember, Burnette told the undercover agents to “keep Maddox on the pay-
roll.” Doc. 440-2 at 198.
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44 Opinion of the Court 21-13990
Doc. 440-2 at 223. A reasonable jury could certainly conclude that
Burnette’s answer to the agent’s question was false. Audio record-
ings entered into evidence show (1) that Burnette directed Miller
and Sweet to write checks to Governance, which Burnette knew
full well Maddox’s girlfriend Paige Carter-Smith owned, and (2)
that he knew that the checks would ultimately find their way to
Maddox.
See supra at 23, 26–28.
Because the FBI agents interviewing Burnette didn’t ask him
any fundamentally ambiguous questions, and because the jury
could reasonably conclude that Burnette lied in response to at least
one of the agents’ queries, we must reject his sufficiency-of-the-ev-
idence challenge to his false-statements conviction.
V
In sum, we hold as follows:
1. We needn’t decide whether the district court erred in in-
structing the jury regarding the meaning and application of
the term “official act,” as used in 18 U.S.C. § 201(a)(3) and
interpreted in
McDonnell, because (1) Burnette invited one
of the errors that he now alleges and (2) he failed to object
to the other and hasn’t shown that it affected his substantial
rights.
2. The evidence presented at trial was sufficient to permit
the jury to conclude that Burnette assisted in bribing Mad-
dox in connection with a § 201(a)(3)-qualifying “official act.”
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21-13990 Opinion of the Court 45
3. The district court did not abuse its discretion in excluding
evidence pertaining to an FBI agent’s conduct during the un-
dercover investigation. And any error that the court might
have committed in admitting the agent’s testimony that
Burnette had made “false exculpatory statements” was
harmless.
4. The evidence was sufficient to permit the jury to con-
clude that Burnette made actionable false statements to FBI
agents in the course of their official investigation, in viola-
tion of 18 U.S.C. § 1001(a)(2).
Accordingly, Burnette’s convictions are AFFIRMED.
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21-13990 Jordan, Rosenbaum & Newsom, JJ., Concurring 1
J ORDAN, ROSENBAUM , and NEWSOM , Circuit Judges, concurring:
To say that the parties “vigorously dispute” the meaning and
proper application of the Supreme Court’s decision in
McDonnell
v. United States, 579 U.S. 550 (2016), might be an understatement.
See Maj. Op. at 20. From their competing briefs, we think it’s fair
to say that Burnette views
McDonnell as a sea-change, while the
government views it as a ripple. As is often the case, the truth, we
think, lies somewhere in between.
To be fair, Burnette’s reading of
McDonnell finds ample sup-
port in the language in the Court’s written opinion. For instance,
the Court was adamant (1) that a § 201(a)(3)-qualifying “matter”
must be “focused and concrete,” (2) that “the Government must
identify” the covered matter, and (3) that “the Government must
prove,” as relevant here, “that the public official . . . agreed” to
“t[ake] an action ‘on’ that . . . matter.” 579 U.S. at 567–70. Knitting
those three requirements together, they do seem to impose a bur-
den on the government to establish that the transacting parties
agreed that, in exchange for a thing of value, a public official would
provide assistance on a particular,
ex-ante-identified matter. And
it’s no stretch to conclude that, by that measure, the district court’s
instruction here was erroneous: It not only told jurors that the
§ 201(a)(3)-covered matter “need not be identified at the time of
payment,” but also (and potentially more problematically) told
them that it was “sufficient” that they find that a payment was
made to Maddox “in exchange for favorable treatment on any not-
yet-known matter that might later come up for a vote.”
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2 Newsom, Rosenbaum & Jordan, JJ., Concurring 21-13990
We must take care, though, not to overread the Supreme
Court’s opinion. On the most muscular version of Burnette’s in-
terpretation,
McDonnell requires the government to prove in
every bribery-related case that the transacting parties made a par-
ticular, discrete, identifiable project—like, say, Fallschase or Myers
Park—the explicit focus of their agreement. The government is
rightly worried that such an understanding of
McDonnell would
upend decades’ worth of settled bribery law. It is particularly con-
cerned, it seems, about the continuing viability of what it calls the
“as-the-opportunities-arise” and “retainer” theories of bribery—
both of which, as it explains, refer to circumstances in which a pay-
ment is made to a public official in exchange for “a continuing
course of conduct” rather than a specific, distinct project. Br. of
Appellee at 18 (quoting
United States v. Roberson, 998 F.3d 1237,
1245 n.10 (11th Cir. 2021)).1 Before
McDonnell, the government
correctly says, courts applying the as-the-opportunities-arise and
retainer theories had “coalesced around the principle that the gov-
ernment need not prove that the briber and the public official had,
at the time of payment, identified a particular item for the public
official to influence through these official acts.”
Id. at 18–19;
see
1 Courts (and the parties here) sometimes refer to the as-the-opportunities-
arise and retainer theories of bribery interchangeably, although without fur-
ther explanation.
See, e.g.,
Roberson, 998 F.3d at 1245 n.10 (“The ‘retainer,’
‘as opportunities arise,’ or ‘stream of benefits’ theory of bribery[] occurs when
a person bribes an individual or entity in exchange for a continuing course of
conduct.”). We don’t think any distinction that might exist between the two
matters for present purposes.
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21-13990 Jordan, Rosenbaum & Newsom, JJ., Concurring 3
United States v. Whitfield, 590 F.3d 325, 353 (5th Cir. 2009) (stating
before
McDonnell that the “overwhelming weight of authority”
concluded that § 201 does not require “identif[ying] a particular
case that would be influenced” at the time of the agreement). An
important question, then, is whether
McDonnell “thr[e]w all this
out the window.” Br. of Appellee at 26.
Our view is that
McDonnell is best understood as having
tweaked, but not scrapped, the as-the-opportunities-arise and re-
tainer theories. As for the “not scrapped” part, we’ve already said
as much. In
United States v. Roberson, we stated flatly that
McDonnell “did not reject the retainer theory of bribery.” 998 F.3d
at 1251. For support, we pointed to the Second Circuit’s post-
McDonnell decision in
United States v. Silver, 948 F.3d 538 (2d Cir.
2020), in which that court concluded that the as-the-opportunities
arise theory of bribery had survived
McDonnell, albeit in modified
form. In particular, while it disagreed with the defendant’s conten-
tion that “
McDonnell eliminated th[e] so-called ‘as the opportuni-
ties arise’ theory” outright, it “agree[d]” that any application of that
theory had to account for the fact “that [
McDonnell] requires iden-
tification of a particular question or matter to be influenced.”
Id.
at 552 (emphasis omitted). Accordingly, the court clarified, in the
wake of
McDonnell, “a public official must do more than promise
to take some or any official action beneficial to the payor as the
opportunity to do so arises; she must promise to take official action
on a particular question or matter as the opportunity to influence
that same question or matter arises.”
Id. at 552–53.
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4 Newsom, Rosenbaum & Jordan, JJ., Concurring 21-13990
So, if
McDonnell didn’t scrap the as-the-opportunities-arise
and retainer theories, exactly how did it tweak them? In what form
do they survive
McDonnell’s requirement that the government
prove that a public official “agreed” to “t[ake] an action ‘on’” a “fo-
cused and concrete” matter? 579 U.S. at 567–70. As we see it,
McDonnell likely invalidated one brand of these continuing-
course-of-conduct theories but left another intact—and the distinc-
tion lies in the very nature of bribery, whose essence is an agree-
ment, the corrupt bargain itself.
Cf. Evans v. United States, 504
U.S. 255, 268 (1992) (“[T]he offense is completed at the time when
the public official receives a payment in return for his agreement
to perform specific official acts; fulfillment of the
quid pro quo is
not an element of the offense.”).
First, then, the
invalid brand of as-the-opportunities-arise
and retainer liability: A bribery-related agreement, like any other
agreement, requires a bargained-for exchange—a promise of an
identifiable
quid in return for an identifiable
quo. If, in exchange
for a thing of value, a public official pledges only, say, to vote for
his benefactor on some unspecified, future project that might
someday come before him, his promise is so vague as to be illu-
sory—there has been no meeting of the minds, no promised ex-
change of the sort that is a prerequisite to an agreement. After
McDonnell, it seems to us that so hazy a promise can’t form the
basis of a bribery conviction.
Now for the
valid brand: If, instead of promising his assis-
tance only on some undefined future project, the official commits
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21-13990 Jordan, Rosenbaum & Newsom, JJ., Concurring 5
to vote in favor of his benefactor’s pet projects
every time one
comes up for consideration—or, for that matter, to vote in accord-
ance with his benefactor’s interests
every time an issue comes up,
no matter whose particular project is involved—he has, to our
minds, made a corrupt bargain. He has done the dirty deed. In
those circumstances, there has been a meeting of the minds, and
the consideration (so to speak) at the heart of the agreement is tan-
gible and identifiable—no less so, in fact, than had the official com-
mitted to vote for his benefactor on a specific, discrete, identifiable
“Project X.” Concurring in
Silver, Judge Lohier addressed this very
scenario, and his words are worth repeating:
The payment is not in exchange for a vague promise
to act in the payor’s general interests at discrete mo-
ments to be determined only at the official’s discre-
tion . . . . Instead, it solicits a promise that the official
will filter
every official act through the lens of the
payor’s interests. In other words, the promise is not
vague, amorphous, or subject only to the official’s dis-
cretion of when and where to act. Although the mat-
ter that is the subject of the promise is broad in scope,
its contours are clearly defined.
Silver, 948 F.3d at 578–79 (Lohier, J., concurring).
And to be clear, not only does this “every time” brand of the
as-the-opportunities-arise theory square with the first principles of
contract law that underlie bribery liability—it comports with com-
mon sense. What a topsy-turvy world it would be if the federal
bribery statute criminalized an agreement in which a public official
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6 Newsom, Rosenbaum & Jordan, JJ., Concurring 21-13990
pledged to back his benefactor’s interests on a single, discrete, one-
off project but
didn’t cover an agreement in which that same offi-
cial pledged to do so without fail on a series of numerous projects.
The every-time scenario isn’t just “worse” in an absolute sense than
the one-off scenario—it’s a seriatim repetition of it.2
* * *
Our point is a simple one:
McDonnell arose against a unique
set of facts, and the Supreme Court was understandably worried
about sanctioning the criminalization of vast swaths of day-to-day
lobbying and constituent-relations activity.
See 579 U.S. at 574–77.
There is a risk, though, of over-rotation—
i.e., that we might mis-
read some of the language in the Court’s opinion as having done
more than the Court intended. Those of us on what the Constitu-
tion calls “inferior courts,” U.S. Const. art. III, § 1, would do well
to tread lightly and await further direction from our bosses before
concluding that
McDonnell revolutionized bribery law as we have
long known it.
2 The district court seems to have been concerned about the “every time” phe-
nomenon, as well. Defending its instruction post-trial, it questioned whether
the following could possibly
not constitute bribery: “I will pay you $10,000
per month starting now if you will agree that you will vote in my favor when
my future projects, whatever they may be, come before the commission.”
Doc. 539 at 18.
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