In United States v. Whitman, No. 15-14846 (Apr. 24, 2018) (William Pryor, Julie Carnes, Antoon), the Court upheld convictions and sentences for bribery, wire fraud, theft, and obstruction stemming the fraudulent procurement of government contracts.
One defendant challenged his bribery conviction on the ground that the court erred by failing to instruct the jury that giving illegal gratuities was a lesser-included offense of bribery. The Court rejected that argument because the defendant advanced an exculpatory defense predicated on extortion that, if believed, would have required the jury to acquit him of both bribery and giving illegal gratuities. The evidence thus would not have permitted the jury to acquit him of bribery but convict of him giving illegal gratuities. As a result, the Court found it unnecessary to decide whether the latter was a lesser included offense of the former.
Another defendant challenged his sentence on the ground that he was not responsible for the entire loss amount attributable to the criminal scheme. The Court rejected his argument that the actions of other government employees were taken independently and not the product of any criminal agreement. The record permitted the district court to infer that he agreed to participate in a jointly undertaken criminal scheme. It did not matter that the agreement was “implicit” or that he did not know every detail of the others’ participation; it sufficed that he was fully aware of the objective and was actively involved in it.