             Case: 12-10286   Date Filed: 05/02/2013   Page: 1 of 8


                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 12-10286
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 5:09-cr-00154-VEH-PWG-2


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus


EDDIE PRESSLEY,
EURICA PRESSLEY,
a.k.a. Eurica Gadson,

                                                         Defendants-Appellants.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________

                                (May 2, 2013)

Before HULL, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
              Case: 12-10286     Date Filed: 05/02/2013   Page: 2 of 8


      A jury convicted Eddie Pressley and his wife, Eurica Pressley, for numerous

offenses stemming from their involvement in a scheme to direct to a specific

individual, Terry Hall, government orders for bottled water for troops in Iraq and

Afghanistan in exchange for bribes and kickbacks. The Pressleys were each

convicted of one count of conspiracy to commit bribery, in violation of 18 U.S.C.

§ 371; one count of bribery, in violation of 18 U.S.C. § 201(b)(2)(A); eight counts

of honest services wire fraud, in violation of 18 U.S.C. §§ 1343 and 1346; one

count of conspiracy to commit money laundering, in violation of 18 U.S.C.

§ 1956(h); and eleven counts of engaging in monetary transactions with criminal

proceeds, in violation of 18 U.S.C. § 1957. On appeal, the Pressleys challenge

their convictions on multiple grounds, which we address in turn.

Sufficiency of the Evidence

      Eurica contends insufficient evidence supported her convictions because the

Government did not prove she knew the unlawful purpose of the bribery scheme.

Eurica maintains no evidence demonstrated that she knew she was furthering or

participating in a bribery scheme, rather than helping Eddie receive compensation

from Hall for consulting work. We review de novo whether sufficient evidence

supported the jury’s verdict. See United States v. Cochran, 683 F.3d 1314, 1321

(11th Cir. 2012). We will affirm a verdict “if a reasonable trier of fact could




                                          2
               Case: 12-10286     Date Filed: 05/02/2013    Page: 3 of 8


conclude that the evidence establishes guilt beyond a reasonable doubt.” Id. at

1322.

        Viewed in the light most favorable to the Government, and drawing all

reasonable inferences and credibility determinations in the Government’s favor,

ample evidence supported Eurica’s convictions. See id. at 1321. Witnesses

testified that Eddie used his position as a contracting specialist for the U.S. Army

to direct orders for bottled water, as well as the construction of a fence, to Hall in

exchange for payments to him and Major John Cockerham. Eddie also directed

orders to Hall in return for Hall receiving bribes from other contractors on Eddie’s

behalf. In order to conceal the scheme, instead of paying Eddie directly, Hall

transferred over $2.7 million to foreign bank accounts that Eurica opened and

managed. Further, Eurica used a fake consulting company and created invoices

and emails regarding services that were never rendered to provide a veneer of

legitimacy to the transfers. During the subsequent investigation into the bribery

scheme, Eurica lied about her consulting company, her foreign bank accounts, and

the relationship between Hall and Eddie. Based on the abundant circumstantial

evidence, a reasonable juror could conclude Eurica possessed the requisite mental

state for each of her crimes, and was guilty beyond a reasonable doubt. See id. at

1322; see also United States v. McNair, 605 F.3d 1152, 1196 (explaining that “[i]t

is not necessary for the government to prove that a defendant knew every detail or


                                           3
                 Case: 12-10286       Date Filed: 05/02/2013        Page: 4 of 8


that [s]he participated in every stage of the conspiracy,” and “a common purpose

or plan may be inferred from a development and collocation of circumstances.”

(quotations and alterations omitted)).

Government’s Opening Statements and Closing Arguments

       The Pressleys jointly argue that the prosecutor made improper comments

during opening statements and closing arguments by asserting and insinuating that

the bribery scheme endangered the lives of U.S. soldiers and cost the Government

and American taxpayers money.

       Evaluating the prosecutor’s comments in the context of the trial as a whole

and assessing their probable impact on the jury, we conclude the Pressleys’

substantial rights were not prejudicially affected. See United States v. Lopez, 590

F.3d 1238, 1256 (11th Cir. 2009). 1 The record contained overwhelming evidence

of the Pressleys’ guilt, and, furthermore, the district court instructed the jury that

the attorneys’ arguments were not evidence. The court also remedied any potential

harm from the comments by instructing the jurors that their decision was to be

based only on the evidence adduced at trial. See id. (“Because statements and

arguments of counsel are not evidence, improper statements can be rectified by the




       1
         Because we conclude the Pressleys are not entitled to relief on the basis of prosecutorial
misconduct, we need not decide whether this issue was properly preserved or whether we review
only for plain error, as the Government contends.

                                                 4
               Case: 12-10286     Date Filed: 05/02/2013    Page: 5 of 8


district court’s instruction to the jury that only the evidence in the case be

considered.” (quotation omitted)).

Plea Agreements

      The Pressleys next argue that it was improper for the Government to enter

into plea agreements with Hall and other witnesses that restricted the availability of

the witnesses to the defense. Specifically, they contest the propriety of a provision

requiring that “[t]he [witness who entered into the agreement] shall not reveal his

cooperation, or any information derived therefrom, to any person other than his

attorneys of record in this criminal case without the prior consent of the

Government.” They contend the provisions violated their due process rights and

the Alabama Rules of Professional Conduct, and, consequently, they are entitled to

a new trial.

      The Pressleys, however, have not argued or demonstrated that they sought to

obtain information from Government witnesses but were prevented from doing so

because of the witnesses’ plea agreements. Nor have the Pressleys contended that

they objected to the alleged limitation on their ability to obtain information prior to

or during the course of the trial proceedings. In fact, the Pressleys concede that

their arguments regarding the plea agreements are subject to plain error review.

      Under the plain error standard, “[i]t is the defendant rather than the

Government who bears the burden of persuasion with respect to prejudice.”


                                           5
                 Case: 12-10286        Date Filed: 05/02/2013        Page: 6 of 8


United States v. Olano, 507 U.S. 725, 734 (1993); see also United States v.

Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). As we have explained:

       the burden truly is on the defendant to show that the error actually did
       make a difference: if it is equally plausible that the error worked in
       favor of the defense, the defendant loses; if the effect of the error is
       uncertain so that we do not know which, if either, side it helped the
       defendant loses.

Rodriguez, 398 F.3d at 1300. The Pressleys run afoul of this principle, contending

in their brief on appeal that there was a “possibility” or “probability” that the

witnesses “may have had new information.” The Pressleys do not identify what

information they were prevented from obtaining, or how the trial would have been

different in the absence of the challenged provisions. Given the speculative nature

of the Pressleys’ assertions, it is uncertain what effect, if any, the alleged error had

on the outcome of the proceedings, and they have not established that, but for the

challenged provisions, there was a reasonable probability the outcome of the trial

would have been different. See id. at 1299. As such, the Pressleys are not entitled

to relief on this claim. 2

       2
          Even if we considered this claim on the merits, “[t]his circuit has made clear that
appellants seeking reversal on the basis of prosecutorially-impaired access to witnesses must
allege specific demonstrable prejudice in order to set forth a constitutional claim,” and
“[h]ypothetical or generalized prejudice is insufficient.” United States v. Pepe, 747 F.2d 632,
654-55 (11th Cir. 1984). The Presselys have not alleged the requisite prejudice with anything
approaching the necessary level of specificity.
        Additionally, in the absence of prejudice, any ethical breach committed by the
Government lawyers would be a matter for individual discipline, not an independent basis for a
new trial. Cf. United States v. Lowery, 166 F.3d 1119, 1124-25 (11th Cir. 1999) (holding that
state rules of professional conduct and district court rules incorporating such state rules did not
provide a basis for suppressing evidence).

                                                 6
              Case: 12-10286     Date Filed: 05/02/2013    Page: 7 of 8


Honest Services Wire Fraud

      Finally, Eddie argues that his convictions for honest services wire fraud

should be reversed because he may have been convicted on a legally erroneous

theory, as Skilling v. United States, 130 S. Ct. 2896 (2010), establishes that wire

fraud does not include an undisclosed conflict of interest component. Eddie

maintains it is possible he was convicted based on an undisclosed conflict of

interest theory because he received a general verdict and the indictment and jury

instructions both mentioned self-dealing as a basis for convicting him of honest

services fraud.

      The Supreme Court has held that “constitutional error occurs when a jury is

instructed on alternative theories of guilt and returns a general verdict that may rest

on a legally invalid theory.” Skilling, 130 S. Ct. at 2934 (citing Yates v. United

States, 354 U.S. 298 (1957)); see also United States v. Verbitskaya, 406 F.3d 1324,

1332 (11th Cir. 2005). Any error in this case arising from the district court’s

reference to self-dealing, however, was harmless. See Skilling, 130 S. Ct. at 2934

(“[E]rrors of the Yates variety are subject to harmless-error analysis.”). The focus

of the indictment and the overwhelming evidence at trial related to a bribery

scheme. The jury, moreover, convicted Eddie of both bribery and a conspiracy to

commit bribery. This case was presented and litigated as a bribery and kickback




                                           7
               Case: 12-10286    Date Filed: 05/02/2013       Page: 8 of 8


honest services fraud case, and we are convinced any error was harmless.

Accordingly, Eddie is not entitled to relief on this claim.

Conclusion

      For the foregoing reasons, we affirm the Pressleys’ convictions. We note,

however, that Count 3 of the superseding indictment charged the Pressleys with

bribery in violation of 18 U.S.C. § 201(b)(2)(A), while their judgments reflect that

they were convicted of bribery in violation of 18 U.S.C. § 201(b)(1)(A).

Accordingly, we remand for the limited purpose of correcting the judgments. See

United States v. Wimbush, 103 F.3d 968, 970 (11th Cir. 1997) (affirming a

defendant’s sentence while remanding for the limited purpose of correcting a

scrivener’s error).

      AFFIRMED and REMANDED with instructions.




                                           8
