Posted by: Patricia Salkin | August 9, 2012

11th Circuit Court of Appeals Affirms Conviction of County Zoning Officials for Bribery and Fraud

Editor’s Note: While this is a criminal law case, it is included on Law of Land to point out how unethical behavior may also rise to criminal activity.

Mr. Keen was a zoning official for Dixie County. He put his girlfriend’s name on a number of documents in order to obtain funds to renovate his property. An FBI Agent investigating corruption in Dixie County encountered Mr. Keen and, under the threat of prosecution, he agreed to cooperate with the FBI in an undercover operation to investigate further corruption in the County. Another undercover FBI agent posed as a representative of a fictitious development company seeking to establish a development in the county. The undercover agent gave Mr. Keen a sum of money to be distributed to two commissioners to ensure their favorable vote on the development plan. As a result of the investigation, Mr. Keen was indicted by a grand jury for fraudulently obtaining property from a local government receiving federal funds and convicted. A grand jury also indicted Mr. Keen and the two zoning commissioners of conspiring to commit fraud involving an organization receiving federal funds, accepting or agreeing to accept a bribe and making a false statement to the FBI. Each defendant was convicted as charged.

On appeal, Mr. Keen first contested his conviction for fraudulently obtaining property from an organization receiving federal funds. He claims that he was not an “agent” of the county which is a required element for conviction. The court held, however, that Mr. Keen’s interpretation of “agent” is unsupported by the plain language of the statute and, absent the need to avoid absurd consequences, courts generally may not reinterpret the plain meaning of a statute. Having rejected Mr. Keen’s interpretation of the word “agent”, the court moved to see whether the government established that Me. Keen was an agent under the plain language of the statute. The court determined that as an employee of the County who was assigned to enforce its codes and operated a county vehicle, a reasonable jury could find him to be an agent of the county.

Mr. Keen then challenged the District Court’s rejection of his proposed jury instruction on the meaning of “agent.” His instruction would have required him to have somehow taken advantage of his position to steal money from the county. However, the law does not require a jury to find that Mr. Keen had taken advantage to be guilty.

He next challenged his conviction claiming that it was barred under the statute of limitations. He claims that the statute of limitations began to run when all the elements of the offence were first satisfied. However, after that point, the government proved that Mr. Keen again satisfied all the elements of the offense a few months later, putting his conviction within the statute of limitations.  

The 11th Circuit upheld the conviction of Mr. Keen for fraudulently obtaining property from an organization receiving federal funds.

The Court next turned to the bribery charges. Mr. Keen first asserted that the government failed to prove that he was soliciting bribes or knowing participating in a conspiracy to solicit bribes because he was assisting the FBI in investigating the bribery scheme. However the court disagreed, finding that a reasonable fact finder could have disbelieved his claims that he was assisting the FBI or was doing so only as a hedge against being caught.

The two commissioners then claimed that as a matter of law, they should have been acquitted by the district court of the bribery charged because the government failed to offer sufficient evidence regarding the business intended to be influenced by the bribe. However, the law does not require the government to prove a specific official act for which a bribe was received. Rather, they must only show that the commissioners corruptly accepted anything of value with the intent to be influenced or rewarded in connection with any business, transaction or series of transactions which is exactly what the government did.

However, the court did find credence in Mr. Keen’s contention that his fraud and bribery offenses were improperly grouped and led to him wrongly receiving a six-level enhancement based on the fraudulently obtained money. The court held that because nothing indicated that the district court would have otherwise sentences him to seventy eight months imprisonment without the improper grouping; they remanded the case with a mandate to vacate his sentence and resentence him.

The Court affirmed all convictions but remanded to resentence Mr. Keen.

United States v. Keen, 676 F.3d 981 (11th Cir. 2012)

The opinion can be accessed at:  http://www.ca11.uscourts.gov/opinions/ops/200916027.pdf


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