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United States v. Suhl

United States Court of Appeals, Eighth Circuit

March 22, 2018

United States of America Plaintiff- Appellee
v.
Theodore E. Suhl Defendant-Appellant

          Submitted: September 21, 2017

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before COLLOTON, BENTON, and KELLY, Circuit Judges.

          KELLY, Circuit Judge.

         A jury convicted Theodore Suhl of bribing an Arkansas state official. He appeals, arguing that the district court[1] improperly defined the crime of bribery when analyzing his indictment and instructing the jury, committed evidentiary errors, and unreasonably calculated the loss due to his bribery scheme. We address each argument in turn.

         I. Facts

         Three individuals are key to this case. The first is Suhl, a successful Arkansas businessman. Among the businesses that Suhl owned or ran were two for-profit companies that provided mental health treatment to juvenile Medicaid recipients. Between 2007 and 2011, these two companies received over $10 million per year in Medicaid reimbursement. The second is Phillip Carter, an Arkansas probation officer. Carter and Suhl knew each other because Carter frequently referred juveniles for treatment at Suhl's companies. The third is Steven Jones, a former state legislator and the second-in-command at the Arkansas Department of Health and Human Services (ADHS). ADHS is Arkansas's largest agency; its responsibilities include administration of Arkansas's federally-funded Medicaid program and regulation of juvenile mental health care providers.

         Suhl knew Jones from Jones's days as a state legislator, and he sought to capitalize on that acquaintance. At some point, Suhl asked Carter to arrange a meeting with Jones; Carter replied that the meeting would only happen if Suhl paid Jones a $2, 000 "fee." Suhl agreed, and wrote a $2, 000 check to the church Carter attended, telling Carter "y'all know what to do with it, do what you want with it." Soon afterward, Suhl met with Jones over dinner. After that meeting, Carter's church (through its pastor, John Bennett) wrote Jones a check for $2, 000.

         This pattern repeated itself for four years. Suhl would call Carter, Carter would call Jones, Suhl would pay Carter's church, Suhl and Jones would meet, and Carter's church would pay Jones. At their meetings, and by phone through Carter, Suhl would ask Jones to assist his businesses. Some of his requests were broad: "see what he can do to help us." Others were more specific. In an effort to increase his companies' Medicaid reimbursement rates, for example, Suhl asked Jones "to see if he can get the Medicaid portion of [ADHS] . . . up under his jurisdiction." Suhl also sought more clients by asking Jones to increase the geographical radius from which one of his companies could receive referrals. And Suhl asked Jones to convince the governor to reappoint him to a state board that licenses and inspects juvenile residential treatment facilities.

         Jones never specifically agreed to do any of the things Suhl asked. He told Suhl he would "look into" his requests, and sometimes reported that he had involved himself in a meeting so he could gain information for Suhl. But there is no evidence that Jones ever did anything more than inquire into Suhl's requests.

         Suhl's last meeting with Jones was over dinner at a steakhouse in Memphis, Tennessee. Carter was also there. That meeting was comprehensively documented by the FBI, which was investigating Suhl and his companies. FBI agents were listening when Suhl called Carter to complain that a rival company was receiving all the ADHS juvenile mental health referrals in northeastern Arkansas. Suhl told Carter that he wanted Jones to put a stop to this, and to direct the referrals to one of his companies instead. Agents also heard Jones accept Carter's invitation to meet with Suhl, but only if Suhl had "enough time to make sure he's got everything together for us." At the steakhouse, video surveillance recorded Suhl passing Carter a check intended for Jones.

         FBI agents approached Carter soon after this final meeting. Confronted with the wiretap and video surveillance evidence, Carter agreed to help the FBI investigate Suhl and Jones. Agents watched when Carter-now working with the FBI- took Jones the check Suhl had given him at the dinner. Jones accepted the money, and the FBI confronted him. Jones also agreed to help the FBI.

          A grand jury indicted Suhl on one count of conspiracy in violation of 18 U.S.C. § 371; three counts of honest-services wire fraud in violation of 18 U.S.C. §§ 1343 and 1346; one count of federal-funds bribery in violation of 18 U.S.C § 666(a)(2); and one count of interstate travel in aid of bribery in violation of 18 U.S.C. § 1952(a)(3). After trial, a jury convicted Suhl on the federal-funds bribery count, the count of interstate travel in furtherance of bribery, and two of the honest-services wire fraud counts. He was acquitted of all other counts. The district court imposed an 84-month sentence. Suhl timely appealed.

         II. Discussion

         On appeal, Suhl alleges three sets of errors. First he argues that the district court misinterpreted the federal bribery statutes, leading to errors in analysis of the indictment and instruction of the jury. Next, Suhl contends that the district court violated his right under the Confrontation Clause by limiting cross-examination of two witnesses, and abused its discretion by excluding evidence of his charitable giving. Finally, Suhl claims that the district court failed to accurately calculate the loss due to his bribery for purposes of sentencing.

         A. Application of the Bribery Statutes

         Suhl objects to the way the indictment and the jury instructions applied the federal bribery statutes to his conduct. Because Suhl's arguments involve the interplay of several anti-bribery statutes, a bit of background is useful.

         1. Background

         Federal statutes criminalize both the making and the taking of bribes, with separate subsections laying out different elements for defendants who pay bribes (the payor) and defendants who take bribes (the payee). See, e.g., 18 U.S.C. ยง 201(b)(1), (2); 18 ...


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