Submitted: September 21, 2017
from United States District Court for the Eastern District of
Arkansas - Little Rock
COLLOTON, BENTON, and KELLY, Circuit Judges.
convicted Theodore Suhl of bribing an Arkansas state
official. He appeals, arguing that the district
court 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
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.
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.
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.
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
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
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.
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.
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.
Application of the Bribery Statutes
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.
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. § 201(b)(1), (2); 18 ...