                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           JUNE 7, 2011
                            No. 09-14891
                                                            JOHN LEY
                      ________________________
                                                             CLERK

                   D. C. Docket No. 08-00043-CR-CC-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MACK S. SMITH,
RICHARD E. LONG,

                                                       Defendants-Appellants.


                      ________________________

               Appeals from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (June 7, 2011)

Before DUBINA, Chief Judge, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:



      A jury convicted Mack S. Smith and Richard E. Long of bribery of a public

official, honest services wire fraud, and money laundering. On appeal, Long and

Smith assert that the district court erred in allowing a witness to assert her Fifth

Amendment privilege against self-incrimination to avoid testifying. Long also

argues that his conviction is supported by insufficient evidence and that his

sentence is procedurally and substantively unreasonable. No reversible error

exists; we affirm defendants’ convictions and sentences.



                                 I. BACKGROUND



      Defendant Richard Long is a former civilian employee of the Army; he

served as a Water and Petroleum Program Manager from1991 to 2004. During that

time, Long reviewed contract bids and supervised contractor performance for the

Army’s contracts for water purification equipment and services. Long also

compiled contract requests, which included a statement of the work the Army

needed and an estimate on how much the contract should cost.

      Defendant Mack Smith owned WATEC, a civilian contractor that provided



                                            2
services, training, and maintenance for water-purification systems.

      Long helped WATEC win contracts by providing WATEC employees with

confidential information about the contracts and the government’s pricing

specifications before WATEC submitted its bid. WATEC would tailor its bid

based on that information and set its price as close as possible to the price the

government was willing to pay. This access to confidential information gave

WATEC an advantage in the bidding process.

       Long also frequently wrote “sole-source justifications” that allowed the

government to award contracts to WATEC without going through a competitive

bidding process. Instead, the government awarded the contract directly to WATEC

based on Long’s assertion that WATEC was the only contractor capable of

performing the work.

      The government awarded over $66 million in contracts to WATEC during

Long’s employment. During this time, Smith or WATEC made 55 payments to

Long of between $1,000 and $75,000. The payments were routed to accounts held

by Long, his wife, or his wife’s sister. The payments to Long totaled $549,700.

      Long testified that all of these payments were “loans.” But no loan

agreement existed, and Long never paid back any of the money. Smith also hired

Long’s son to work at WATEC.



                                           3
       A grand jury issued a 105-count indictment charging Smith, Long, and

Long’s wife, Debra Long, with conspiring to commit honest services mail fraud,

honest services wire fraud, and bribery of a public official; and also with actually

committing wire fraud, bribery of a public official, and money laundering.

       At trial, the defense sought to proffer the testimony of Mary Anne Osborn, a

contracting officer who worked with Long. But the government told the district

court that Osborn was the target of a separate investigation and that it planned to

question Osborn at trial about her own conduct that was under investigation.1

Long moved to exclude any cross-examination about the investigation of the

pertinent witness; the district court denied the motion.

       When the defense called Osborn to the stand, the district court spoke with

counsel for Osborn and for the parties about the proposed lines of questioning.

Following this discussion, Osborn’s counsel said that Osborn planned to invoke

her Fifth Amendment privilege for all testimony, including direct examination.

After the defense made a detailed proffer of Osborn’s testimony, the trial court

preliminarily concluded that Osborn could correctly invoke the Fifth Amendment

about some topics but not about others.2

       1
       The investigation related to Osborn’s husband’s receipt of payments from a company to
which Osborn awarded contracts. Osborn later settled with the government.
       2
         Osborn could not invoke the Fifth Amendment on her employment history; her history
of contact with Long; general facts about specific contracts; WATEC’s performance and

                                             4
       Two days later, after hearing Long’s testimony, the district court ruled that

the witness Osborn would be totally excused from testifying. The court concluded

that “once testimony that would be cumulative is excluded, she could legitimately

refuse to answer essentially all relevant questions.”

       The jury convicted Long of the bribery and wire fraud counts that occurred

after July 2004 (the date when, Long stated, he had taken an ethics class and

realized he was doing wrong) and of money laundering. The jury convicted Smith

of bribery, wire fraud, and money laundering. The jury acquitted Debra Long of

all counts. At sentencing, the District Court determined that Long had held “a high

level decision-making or sensitive position” and applied a four-level sentencing

enhancement. Smith and Long now appeal.




competence; Long’s role in a certain contract; Osborn’s interactions with Smith; and facts about
a contracting officer that Smith hired.
        The district court preliminarily concluded that Osborn would be allowed to invoke the
Fifth on the contract-award process; propriety of billing methods; the influence of the task
monitor on the process; corruption of the process; and the investigation into Osborn’s conduct.

                                                5
                                      II. DISCUSSION



                                                A.



       Defendants assert that the district court violated constitutional rights by

allowing Osborn to invoke her Fifth Amendment privilege against compelled self-

incrimination to avoid testifying. Long specifically argues that Osborn’s testimony

would have presented critical exculpatory evidence and that excluding the evidence

violated his Fifth Amendment right to due process.3 Smith argues that excluding

the testimony violated his Sixth Amendment right to compulsory process for

obtaining witnesses in his favor.4

       Trial courts have broad discretion to resolve self-incrimination claims. See

United States v. Melchor Moreno, 536 F.2d 1042, 1050 (5th Cir. 1976); Hoffman

v. United States, 71 S. Ct. 814, 818 (1951) (“It is for the court to say whether [a

witness’s] silence is justified . . . .”). “To sustain the privilege, it need only be

evident from the implications of the question, in the setting in which it is asked,

       3
          Long asserts that Osborn would have testified that Long could not have improperly
influenced the contract award process even if he had wanted to; that Long was competent but
difficult to get in touch with; and that Smith did not understand all the pertinent contracting
concepts.
       4
         Smith asserts that Osborn’s testimony would have supported his defense that Smith’s
“loans” to Long did not buy access to Army contracts.

                                                 6
that a responsive answer to the question . . . might be dangerous because injurious

disclosure could result.” Hoffman, 71 S. Ct. at 818. In deciding whether a witness

is entitled to claim the privilege, the trial court may rely on its “personal perception

of the peculiarities of the case” in addition to “the facts actually in evidence.” Id.

(quoting Ex parte Irvine, 74 F. 954, 960 (S.D. Ohio 1896)).

      When a witness asserts the privilege against self-incrimination, “[a] court

must make a particularized inquiry, deciding, in connection with each specific area

that the questioning party wishes to explore, whether or not the privilege is well-

founded.” Moreno, 536 F.2d at 1049.

      The district court’s inquiry into the areas of testimony was sufficient to

protect Defendants’ constitutional rights in this case. The district court in this case

inquired into the proposed testimony and cross examination. It appointed counsel

for the witness and heard from counsel for all parties, several times. Defendants’

counsel offered a proffer of the testimony the witness likely would have given.

The government outlined the questions that it likely would have asked the witness.

The trial court first pointed out certain topics that could be the subject of

testimony, but later considered the issue for a second time and revised its ruling.

      After inquiring into the proposed subjects of testimony, the district court

noted that, if Osborn testified about the non-collateral subjects, the government



                                            7
planned then to question the witness about: the ethical obligations applicable to

Long, whether she knew that Long’s son worked at WATEC, whether she knew of

the payments to Long, and whether she would have approved the contracts if she

had known this information. Answering these questions would have very likely

resulted in incriminating disclosures. The court did not err in concluding that the

witness was entitled to raise her Fifth Amendment privilege against self-

incrimination to be excused from testifying about these proposed areas of inquiry.

See Hoffman, 71 S. Ct. at 818.

      In addition, the court did not err by excusing the witness from testifying

about the remaining proposed subjects of testimony. The court properly concluded

that any topics about which the witness could testify without fear of self-

incrimination would likely be cumulative, irrelevant, or not subject to cross-

examination by the government without raising Fifth Amendment issues. In these

circumstances, a witness may be excused entirely from testifying. See Moreno,

536 F.2d at 1049 (noting that a witness could be excused from testifying if the

court concluded “that [the witness] could legitimately refuse to answer essentially

all relevant questions”) (internal quotation marks and citation omitted).

      The district court’s decision to excuse Osborn from testifying violated no

constitutional rights.



                                          8
                                                B.



       We next review Long’s claim that insufficient evidence existed to convict

him of the acts of bribery and wire fraud in violation of 18 U.S.C. §§ 2,

201(b)(2)(A), 1343 and 13465 that occurred after 31 December 2004. On appeal,

Long argues that “after he retired on December 31, 2004, Mr. Long had no ability

to help Watec in any way . . . There was simply no evidence from which the jury

could conclude that, after December 31, 2004, Mr. Long had the specific intent to

act corruptly or to defraud.”

       Long, however, did not move for a judgment of acquittal in the district court

on the counts at issue on appeal. Thus, we review his claim about the sufficiency

of the evidence only for plain error. We must affirm the conviction unless a

“manifest miscarriage of justice” has been shown. United States v. Bichsel, 156

F.3d 1148, 1150 (11th Cir. 1998).

       Sufficient evidence supports the jury’s verdict. Evidence at trial established



       5
           18 U.S.C. § 201(b)(2)(A) prohibits a public official from receiving “anything of value .
. . in return for . . . being influenced in the performance of any official act.” 18 U.S.C. § 1343
prohibits the use of wire communication to execute “any scheme or artifice to defraud.” 18
U.S.C. § 1346 states that a scheme “to deprive another of the intangible right of honest services”
falls within the scope of section 1343.

                                                 9
that Long received $549,700 in payments from Smith. In exchange, Long

consistently recommended that WATEC receive lucrative government contracts.

A jury could reasonably infer that Long had accepted something of value in return

for being influenced in the performance of an official act in violation of section

201(b)(2)(A) and that he used wire communication to carry out a scheme to

defraud in violation of section 1343.

       In addition, a jury could reasonably infer that payments made and accepted

after Long’s retirement were deferred compensation for earlier wrongs and were

part of a scheme to conceal Long’s earlier acts of influencing the award of

government contracts.6 No miscarriage of justice has been shown in this case;

Long’s convictions are affirmed.



                                               C.




       Long also argues that his sentence is procedurally unreasonable because he

did not occupy a “high level decision-making or sensitive position” that would


       6
          That the jury acquitted Long of the conspiracy count does not preclude a conclusion that
sufficient evidence existed to support a conviction for bribery and wire fraud. See United States
v. Pruitt, 638 F.3d 763, 767 n.6 (11th Cir. 2011) (“Mere inconsistency of the jury verdicts cannot
bolster Defendant’s argument on appeal.”).

                                                10
justify a sentence enhancement.

      The sentencing guidelines allow for a 4-level increase to a base offense level

if the bribe “involved . . . any public official in a high-level decision-making or

sensitive position.” U.S. Sentencing Guidelines Manual § 2C1.1(b)(3) (2010).

Long concedes that “[n]umerous prosecution witnesses testified that they relied on

Mr. Long and his recommendations, due to his personal knowledge, experience,

and expertise.” But Long argues that the sentence enhancement does not apply to

“the broad range of bribe recipients who exerted some special influence over a

decision-making process, but specifically and only to those occupying ‘a high-level

decision-making or sensitive position.’” Long contends that regardless of the actual

influence he commanded, he did not occupy an official position of authority.

      This form over function argument is incorrect. The commentary to the

sentencing guidelines state that a “‘[h]igh-level decision-making or sensitive

position’ means a position characterized by a direct authority to make decisions

for, or on behalf of, a government department . . . or by a substantial influence over

the decision-making process.” U.S. Sentencing Guidelines Manual § 2C1.1 cmt.

n.4(A) (2010) (emphasis added). In other words, a defendant’s position may be

evaluated in terms of the influence that the defendant exercised.

      As Long concedes, the evidence at trial established that Long wielded



                                           11
substantial influence over the decision-making process. The district court did not

err in enhancing his sentence based on his high-level decision-making position.

       Long last argues that his sentence is substantively unreasonable. Long

asserts that his 210-month sentence is grossly disproportionate to the nature and

circumstances of the offense, Long’s criminal history and characteristics, and

sentences that other white-collar crime defendants have received.

       The district court did not commit reversible error in sentencing Long.

“[T]here is a range of reasonable sentences from which the district court may

choose, and when the district court imposes a sentence within the advisory

Guidelines range, we ordinarily will expect that choice to be a reasonable one.”

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[T]he party who

challenges the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both that record and the factors in section 3553(a).” Id.

       The district court considered both the sentencing guidelines and the 18

U.S.C. § 3553 factors before imposing a sentence. The court adopted the parties’

joint recommendation that the loss amount be calculated based on the value of the

total payments that Long received instead of the much greater value of WATEC’s

profits on the contracts.7 The sentence that the district court ultimately imposed--a


       7
        This lowered the offense level from 45 (for which the guidelines recommend life
imprisonment) to 37 (for which the guidelines range is 210 to 262 months).

                                              12
total of 210 months’ imprisonment--is at the low end of the sentencing range.

Long has not shown that the sentence that the district court imposed is

unreasonable, and the sentence is affirmed.



                                III. CONCLUSION



      Defendants have shown no error in their trials or sentencing. Their

sentences and convictions are AFFIRMED.



      AFFIRMED.




                                         13
