                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 14a0187n.06

                                            No. 13-3252                                    FILED
                                                                                    Mar 10, 2014
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
                                                                   ON APPEAL FROM THE
               v.                                          )
                                                                   UNITED STATES DISTRICT
                                                           )
                                                                   COURT FOR THE SOUTHERN
SAMUEL P. MAYS,                                            )
                                                                   DISTRICT OF OHIO
                                                           )
       Defendant-Appellant.                                )
                                                           )
                                                           )


BEFORE: MERRITT, SUTTON, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Samuel P. Mays was convicted by a jury of bribing a government official in

order to obtain work for his construction company, of embezzling assets from his company’s

401(k) plan, and of making false statements by falsely representing that the 401(k) plan was

funded. Mays now appeals his convictions and sentence, arguing that the indictment was

deficient, that the district court erred at sentencing, and that the district court erred by failing to

issue a specific unanimity instruction to the jury. For the reasons set forth below, we affirm.

                                                  I.

       First, defendant argues that the indictment was deficient because: (1) it used disjunctive

language, and (2) it charged him for conduct occurring outside the statute of limitations period.

We disagree and find no plain error.
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       Because Mays did not object to the indictment below, he concedes on appeal that our

review is for plain error. Plain error review “involves four steps, or prongs.” Puckett v. United

States, 556 U.S. 129, 135 (2009). The defendant bears the burden to establish each prong.

       First, there must be an error or defect—some sort of “[d]eviation from a legal
       rule”—that has not been intentionally relinquished or abandoned, i.e.,
       affirmatively waived, by the appellant. [United States v. Olano, 507 U.S. 725,]
       732–33 [(1993)]. Second, the legal error must be clear or obvious, rather than
       subject to reasonable dispute. See id., at 734. Third, the error must have affected
       the appellant’s substantial rights, which in the ordinary case means he must
       demonstrate that it “affected the outcome of the district court proceedings.” Ibid.
       Fourth and finally, if the above three prongs are satisfied, the court of appeals has
       the discretion to remedy the error—discretion which ought to be exercised only if
       the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial
       proceedings.’” Id., at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160
       (1936)).
Id. It is difficult for a defendant to meet his burden to satisfy the plain-error prongs, “as it should

be[.]” United States v. Dominguez-Benitez, 542 U.S. 74, 83 n.9 (2004).

       Mays has failed to meet his burden to show that the indictment’s use of the disjunctive

amounted to plain error affecting his substantial rights. “An indictment is duplicitous if it sets

forth separate and distinct crimes in one count.” United States v. Davis, 306 F.3d 398, 415 (6th

Cir. 2002). “The overall vice of duplicity is that the jury cannot in a general verdict render its

finding on each offense, making it difficult to determine whether a conviction rests on only one

of the offenses or on both.” Id. (internal citation and quotation marks omitted). “The yardstick

in determining whether there is duplicity . . . is whether one offense or separate offenses are

charged[.]” Id. (internal citation and quotation marks omitted). “The test announced most often

in the cases is that offenses are separate if each requires proof of an additional fact that the other

does not.” Id. at 416 (internal citation and quotation marks omitted).




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       Count 1 of the indictment charged that defendant “did directly and indirectly, corruptly

give, offer, and promise something of value to a public official, or offered or promised a public

official to give anything of value to any other person[.]” (Emphasis added.) This language

tracks almost identically the language of the statute under which defendant was charged: 18

U.S.C. § 201(b)(1)(A). Defendant argues that the indictment “gives no certainty as to whether it

charges” that defendant is guilty of “(1) giving something of value to a public official, or (2)

offering to give something of value to another [third] person.” Here, (1) and (2) each require

proof of a fact the other does not. Accordingly, despite defendant’s insistence that his argument

on appeal is not a duplicity argument, it clearly is as a matter of logic.

       Even assuming, arguendo, that defendant has established that the indictment was

erroneous, he has failed to show that it affected the outcome of the district court proceedings and

is therefore not entitled to reversal. This court has previously noted that the “harm from a

duplicitous indictment is inextricably intertwined with the jury instructions actually given.”

United States v. Kakos, 483 F.3d 441, 445 (6th Cir. 2007). Here, the jury was not instructed on

both types of bribery. Rather, the jury was instructed only as to whether defendant “promise[d]

something of value to a public official.” Specifically, the trial court instructed the jury:

       In order to establish the offense of bribery of a public official with intent to
       influence the performance of his official acts, the government must prove each of
       the following essential elements by proof beyond a reasonable doubt.
       First: That the defendant gave, offered or promised something of value as
       described in the Indictment to [the government official].
       Second: That [the government official] was, at that time, an official of the United
       States or was acting on behalf of the United States; and
       Third: That the defendant made the gift, offer or promise corruptly with the intent
       to influence an official act.



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In spite of this instruction, defendant claims that “[t]he [trial] judge’s charge to the jury included

. . . the problematic language of the indictment.” However, defendant is referring to a separate

portion of the trial transcript in which the court read the indictment to the jury. The passage of

the transcript relied on by defendant is not the jury instruction. Because the jury was instructed

as to only one type of bribery under the statute, it was only instructed as to one “offense.” Davis,

206 F.3d at 415. Accordingly, here, defendant’s conviction “rests on only one . . . offense[].” Id.

(internal citation and quotation marks omitted). Therefore, even assuming that the indictment

was in error, defendant has failed to meet his burden to show that the result in the trial court

would have been different absent that error. Puckett, 556 U.S. at 135. He is therefore not

entitled to reversal. Id.

        Defendant has also failed to meet his burden to show plain error affecting his substantial

rights with regard to his argument that the indictment improperly charged conduct outside the

statute of limitations period.

        The essence of bribery under § 201 is the receipt of something of value “in exchange for

an official act.” United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404–05

(1999) (emphasis omitted). However, the exchange itself does not have to be contemporaneous

with the receipt of something for value. “The agreement between the public official and the

person offering the bribe need not spell out which payments control which particular official

acts. Rather, it is sufficient if the public official understood that he or she was expected to

exercise some influence on the payor’s behalf as opportunities arose.” United States v. Terry,

707 F.3d 607, 612 (6th Cir. 2013) (internal quotation marks omitted). Moreover, other circuits

have held—consistent with Terry, and contrary to defendant’s argument—that a bribery scheme

violates the law even in the absence of a one-to-one correspondence between payments and acts.

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See, e.g., United States v. Rosen, 716 F.3d 691, 700 (2d Cir. 2013) (“Once the quid pro quo has

been established, . . . the specific transactions comprising the illegal scheme need not match up

this for that.” (internal citation omitted)); Ryan v. United States, 688 F.3d 845, 852 (7th Cir.

2012), cert. denied, 133 S. Ct. 1275 (U.S. 2013) (“[T]he Government presented a valid ‘stream

of benefits,’ ‘retainer,’ or ‘course of conduct’ bribery theory.”); United States v. Whitfield, 590

F.3d 325, 350 (5th Cir. 2009) (“[A]ll that must be shown is that payments were made with the

intent of securing a specific type of official action or favor in return. For example, payments

may be made with the intent to retain the official’s services on an ‘as needed’ basis, so that

whenever the opportunity presents itself the official will take specific action on the payor’s

behalf. This sort of ‘I’ll scratch your back if you scratch mine’ arrangement constitutes bribery

because the payor made payments with the intent to exchange them for specific official action.”

(quoting United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998)).

       Here, Mays, a construction contractor, engaged in an ongoing scheme along with another

contractor and a government official to provide services to the government official. In exchange,

the government official provided defendant and the other contractor with government contracts

for work. Mays’ bribery scheme arguably constituted a continuing offense—which would make

the fact that the scheme began outside the statute of limitations period immaterial, as the scheme

undoubtedly continued within the limitations period. However, in any event, we cannot say that

the district court committed plain error by allowing the indictment to stand. Even assuming that

the bribes constituted a series of discrete offenses rather than one continuing offense, moreover,

Mays cannot prevail. The government introduced ample evidence that Mays paid bribes during

the limitations period, including testimony from the bribed official and from another participant

in the bribery scheme. Thus, even assuming that the indictment should not have mentioned

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conduct before the limitations period, Mays has not met his burden of showing that the result of

the trial would have been different in the absence of the alleged error. Puckett, 556 U.S. at 135.

                                                II.

       Mays next argues that the district court erred by failing to consider sentencing disparities

between him and his co-participants in the bribery scheme. We disagree.

       This court reviews a district court’s sentencing decision for reasonableness. United

States v. Coleman, 664 F.3d 1047, 1048 (6th Cir. 2012). Reasonableness has both procedural

and substantive components. United States v. Battaglia, 624 F.3d 348, 350 (6th Cir. 2010).

       “[P]lain-error review applies on appeal to those procedural-reasonableness arguments

that were not preserved in the district court.” United States v. Freeman, 640 F.3d 180, 186 (6th

Cir. 2011) (internal quotation marks omitted). A sentence is procedurally unreasonable if,

among other things, the district court “fail[s] to calculate (or improperly calculate[s]) the

Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a) factors,

select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen

sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).

       Defendant’s challenge to his sentence is a procedural-reasonableness challenge to which

he failed to object below; accordingly, our review is for plain error. Defendant relies on United

States v. Wallace, 597 F.3d 794, 804 (6th Cir. 2010), as his exclusive substantive authority as to

his sentencing disparity argument. However, Wallace is distinguishable. There, the defendant

raised an argument in the district court regarding her coconspirator’s relative sentence and

culpability. In fact, this court noted that the defendant’s disparity argument was “the central

point of [the defendant’s] argument for a lower sentence” in the district court. Id. at 803.

However, the district court failed altogether to consider the defendant’s sentencing argument;

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this court noted that, although the government presented reasons why the defendant’s sentence

was reasonable, “this Court cannot determine why the district court thought it was appropriate

that [the defendant] and [her codefendant] should receive such disparate sentences” because the

district court had not addressed an argument that had been raised below. Id. at 804. Indeed, the

court in Wallace remanded because the district court had not even considered an argument that

had been raised, not because the defendant’s sentence was, in fact, unfair when compared to her

codefendant’s. By contrast, here, far from being “central” to his sentencing argument below,

defendant never raised an argument that his sentence was unfair compared to his codefendants

for the reasons stated above. The district court cannot have imposed a procedurally unreasonable

sentence where it failed to consider an argument that was never raised.

       Defendant’s sentence is otherwise procedurally reasonable. Defendant does not argue

that the district court improperly calculated the Guidelines range, nor does he argue that the

district court treated the Guidelines as mandatory. See Gall, 552 U.S. at 51. The district court

spent considerable time considering the factors set forth in 18 U.S.C. § 3553(a). Moreover,

defendant’s sentence was within the advisory range, and this court has noted that

       the Supreme Court has held [that] “avoidance of unwarranted disparities was
       clearly considered by the Sentencing Commission when setting the Guidelines
       ranges,” and the district court’s very act of correctly calculating and reviewing the
       advisory range indicates that a district judge “necessarily gave significant weight
       and consideration to the need to avoid unwarranted disparities.”
United States v. Simmons, 587 F.3d 348, 363 (6th Cir. 2009) (quoting Gall, 552 U.S. at 54). Nor

did the district court select the sentence based on clearly erroneous facts or fail to explain the

chosen sentence. Gall, 552 U.S. at 51.




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                                                 III.

       Finally, defendant argues that the district court erred by not issuing a specific unanimity

instruction for Count 4 of the indictment, which alleged that defendant made false statements

related to his certification of payroll reports indicating that his company’s 401(k) plan was being

funded. Defendant failed to object to the absence of a specific unanimity instruction below;

accordingly, our review—once again—is for plain error.

       “[A]n improper jury instruction will rarely justify reversal of a criminal conviction when

no objection has been made at trial, . . . and an omitted or incomplete instruction is even less

likely to justify reversal, since such an instruction is not as prejudicial as a misstatement of the

law.” United States v. Miller, 734 F.3d 530, 538 (6th Cir. 2013) (internal citation omitted).

Moreover, “creative speculation as to how a juror might be confused does not establish a genuine

risk that the jury is confused or that a conviction may occur as the result of different jurors

concluding that a defendant committed different acts.” Id. at 539 (internal quotation marks

omitted). Here, defendant’s argument, in essence, is that the jury may have been confused about

which payroll statements were false. Defendant never points to any evidence beyond mere

speculation as to why defendant would have been found not guilty as to Count 4 but for the

district court’s failure to issue a specific unanimity instruction. Accordingly, he has failed to

demonstrate plain error affecting his substantial rights.

                                                 IV.

       For the foregoing reasons, we affirm defendant’s convictions and sentence.




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