                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1006n.06

               Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5454, 11-5455

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )                            FILED
                                                         )                         Sep 11, 2012
          Plaintiff-Appellee,                            )                   DEBORAH S. HUNT, Clerk
                                                         )
v.                                                       )
                                                         )
RANDALL CLINTON THOMPSON                                 )
(09-5181, 11-5453),                                      )   On Appeal from the United States
                                                         )   District Court for the Eastern
JOHN MAC COMBS                                           )   District of Kentucky
(09-5189, 11-5455),                                      )
                                                         )
RONNIE ADAMS                                             )
(09-5191, 11-5454),                                      )
                                                         )
PHILLIP G. CHAMPION                                      )
(09-5190),                                               )
                                                         )
          Defendants-Appellants,                         )




Before:          BOGGS and MCKEAGUE, Circuit Judges; and WATSON, District Judge.*

          BOGGS, Circuit Judge. This consolidated appeal arises out of a jury trial for conspiracy,

misappropriation of county funds, and vote buying in Knott County, Kentucky, a county with a

history of political and electoral corruption. Randall Thompson and his three co-defendants, John

Mac Combs, Philip G. Champion, and Ronnie Adams, were all convicted for aiding and abetting one



          *
        The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

another in intentionally misappropriating public funds in excess of $5,000. Adams was also

convicted of one count of offering to compensate a voter with services in exchange for voting for

Thompson.

       The four defendants all appeal their convictions; Combs and Champion also appeal their

sentences. All four defendants appeal the denial of a motion for new trial based on Brady violations.

We affirm the district court with regard to all the defendants’ claims.


                                                  I

                                                  A

       Randall Thompson was appointed Knott County Judge/Executive1 in October 2005,

following the conviction of the preceding judge executive, Donnie Newsome, for vote buying and

conspiracy. During 2006, Thompson ran to keep his position in a “hotly contested” race. Although

over 90% of Knott County voters were registered Democrats, Thompson, a Republican, won a new

term in November 2006 by a margin of 64 votes. Once elected, Thompson’s administration

employed Combs and Champion as Knott County deputy judge/executives. Adams was an elected

magistrate on the Knott County Fiscal Court. The case concerns the actions of Thompson, Combs,




       1
          In Kentucky, a “county judge/executive” functions as the chief executive officer of the
county, “responsible for the proper administration of the affairs of the county placed in his charge.”
KY . REV . STAT . (K.R.S.) §§ 67.705–10. He has the power to appoint a deputy executive and various
other assistants as he sees fit, “who shall serve at his pleasure.” Id. § 67.711(1). He also serves as
the presiding officer on the county’s fiscal court, the financial governing body of the county. Id.
§§ 67.040, 67.080.

                                                -2-
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

Champion, and Adams, from July 2006 through November 2006, the months preceding the election.

R.3 at 4.

        In 2006, the Knott County Fiscal Court allocated a $1,500,000 road bond issue, $500,000 in

county surplus money, and $375,000 in Kentucky transportation funds for blacktopping. Bryan

Jacobs, a CPA and the Knott County treasurer, testified during trial that this was a large amount to

spend on blacktop. (“Q. Was that an unusually high amount of blacktop expenditure for Knott

County at that time? A. Yes, that’s a lot of blacktop, yes.”). Decisions on how to spend the money

were made by the fiscal court and the judge/executive. Subsequently, Adams arranged a meeting

where a small blacktop company owner, Randy Campbell, met with all of the defendants at

Thompson’s office. They hired Campbell and one of the defendants told him that Combs would

show him where to pave.

        Combs directed Campbell to pave multiple private driveways throughout the county over a

two-and-a-half-month period. (“Q: Did you lay blacktop on private property? A: Yes. Q: And who

directed you to do that? A: Mac Combs.”). Combs directed Campbell to pave both public and

private drives, including Combs’s own driveway, the driveway of Thompson’s secretary, Tammy

Brewer, and her father, Hoey Dobson.2 Campbell testified that he also laid blacktop on public roads

at Combs’s direction. Adams also directed some of the free paving.




        2
         It is unclear if this paving took place before the election; Campbell testified that he believed
that he paved Brewer’s and Dobson’s driveways in December 2006. (“Q. And do you recall when
that occurred? A. It was in, I think, December. I’m not sure what date.”).

                                                  -3-
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

          The defendants also put gravel on private property for free. Campbell testified that, in the

summer and fall of 2006, Phillip Champion directed him to put down gravel on private property, and

Mac Combs rode with him to show him where to put it. One contractor testified that Combs told

him that Judge Thompson had told Combs to ride with the contractor to show him where to put the

gravel.

          In addition to laying blacktop and gravel on private drives without charge, trial testimony

showed that the defendants also tried to cover up the free blacktop by issuing false receipts. Combs

asked Campbell to prepare receipts reflecting a cash payment to “put them in the clerk’s office just

in case.” Campbell acquiesced, providing fake receipts to Combs, Brewer, and Dobson.3

          The defendants, in addition to free blacktop and gravel, repaired or built bridges on private

property before the election. Randy Gayheart, a Knott County worker who specialized in bridge

building, testified that during the summer and fall of 2006, the time leading up to the judge race, he

built “around 20 bridges, including ‘several’ on private property.” He testified that he was instructed

to build the bridges by Phillip Champion and Randy Thompson. Gayheart worked both on his own

time and on county time building the bridges before the election. Gayheart estimated his fee for one

bridge as $3,000, and that a bridge, including the materials needed to build it, cost about $4,500 or

$5,000. The county bought the materials and paid Gayheart for building the bridges, on top of his


          3
         Brewer later provided the receipt to federal agents and testified, falsely, before a grand jury
that she and Dobson had paid cash for the paving. Dobson also testified falsely before a grand jury
that he had paid cash for the work and received the receipt from Campbell or one of his workers.
Both Brewer and Dobson were convicted of perjury, and their convictions were affirmed by this
court. United States v. Brewer, 332 F. App’x 296 (6th Cir. 2009).


                                                  -4-
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

normal county salary. He verified during trial that many of the bridges were on private property and

provided access only to single houses.

       Adams also specifically spoke about trading blacktopping services for Thompson votes.

Knott County resident, Brandon Moore, testified that Adams offered to blacktop his driveway in

exchange for a vote cast for Thompson. (“I pulled up, and he asked me I’d like to have my hill

blacktopped, and I said, ‘Yeah,’ I said, but I couldn’t afford it, and he said it wouldn’t cost me

nothing but a vote.”). Moore agreed to vote for Thompson; his drive was paved shortly thereafter.

Id. at 51. The drive was on private land and only provided access to one home. Id. at 53. However,

Moore was not firm on the fact that it was Adams who offered the service. Id. at 50 (“I’m pretty

sure he said his name was Ronnie Adams. I think’s what it was.”). Moore claimed that he had never

met Adams, but came to know who he was “[j]ust through people talking.” Ibid. Moore also failed

to identify a picture of Ronnie Adams as the man that offered to pave his driveway, but later

identified another picture and explained the confusion. Id. at 51 (“He looked different, had glasses

on and stuff in the second picture.”).

       Another Knott County resident, Bobby Reynolds, recalled the following phone conversation

with Adams:

       Then [Adams] just asked me what did I think about the election, and I told him I
       hadn’t really thought about it. I asked what he was doing, and he said he’s down
       blacktopping a lot. He was for Randy Thompson, and I told him, I said, [“]Well, why
       don’t you bring some blacktop around here . . .[,”] and he said, “I’ll try to before the
       election. If I can’t, I’ll get it after the election.” I said, “Well, if you can do it
       before”—he asked me how everybody’d vote up here—he asked me how’s all my
       family going to vote, and I told him I hadn’t asked them, and he said, “Well, if I can



                                                -5-
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

       get it to you . . . to blacktop you before the election,[”] and I said, “Well, if you
       blacktop before the election, every one of them in here will vote for Randy.”

Reynolds and roughly thirty of his family members live on Rooster Lane.3 The road was paved two

weeks before the November election.

       Campbell billed the city for the driveways that he was directed to pave. However, the

invoices from Campbell and the other companies hired for similar contract work listed the tonnage

of asphalt used but not the location of the work performed. R.210 at 118–19, 231–32; R.214 at 60.

Furthermore, the record is clear that many homeowners who received paving on their private

property in 2006 did not pay for the service.

       Thompson appointed Champion a deputy judge in early 2006 and charged him with oversight

of the county road department. Harold Bentley, then road foreman, testified that Champion “more

or less ran the show,” making decisions about daily assignments and projects. (“[I]f there was

something that he wanted done, you know, [Champion] would come and tell me, you know, what

to do.”). Paul Slone, a Knott County grader operator, testified that Champion told him which

driveways to grade before the contractors blacktopped them. Slone also testified that Combs rode

with him the Saturday before the election, telling him where to lay gravel. Tom Hays, a Knott




       3
        Defendants presented evidence that Rooster Lane was maintained as a public road prior to
the Thompson administration. A former Knott County road foreman testified that the county
maintained the road by “work[ing] on it several times” in the wake of heavy area flooding.
However, Reynolds testified that only part of the road had been previously paved and that the portion
paved immediately before the 2006 election was a private road.


                                                -6-
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

County truck driver, testified that Champion directed him to place gravel on driveways prior to the

election, and Combs rode with him.

       During the 2006 race, Randy Walters, a news reporter covering the race, attended several

Knott County fiscal court meetings. At a meeting in September 2006, he asked Judge Thompson

about the county paving bridges to private residences. Thompson merely answered that “they were

saving money by having county employees build the bridges.” At the September and October

meeting, Walters also asked whether the county was paying to blacktop private driveways, and

Thompson denied it.

       Byron Jacobs, who has been the Knott County treasurer since 2005, became concerned in

2006 when he heard Walters’s accusations in fiscal-court meetings that bridges and blacktop were

being provided to private individuals for private purposes. Jacobs wrote two letters seeking

verification that specific graveling, road work, and bridge repairs, including those of Randall

Gayheart, were “performed for a public purpose.” Thompson replied in writing to both letters,

stating that the projects had been “properly inspected” and “all of the projects meet the requirement

of being performed for a public purpose.”

       Ralph Dyer, a county road worker, contacted the Kentucky Attorney General’s office and a

local television reporter to inform them that Thompson’s administration was using public funds on

private property. Dyer, who was laid off in March of 2007, believed he had been laid off for letting

people know about his suspicions.

       In a 2007 interview with the news reporter, Thompson stated, “I paved a lot of roads and we

built a lot of bridges and that’s because people’s [sic] our tax payers.” She asked, “So they deserve

                                                -7-
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

that?” Thompson responded, “Yeah. Absolutely.” Addressing whether the work was on private

property, Thompson said: “I guess it depends on who you ask whether it’s private. I’ve learned since

being in this office that if I’m working for you, it’s county but if I’m working for your neighbor, it’s

private. And it seems like people with political agendas . . . ah, bring up those arguments.”

        Kentucky counties are audited annually by the Office of the Auditor of Public Accounts. In

2006 , Simon, Underwood & Associates received the bid for the 2006 and 2007 year-end audits for

Knott County.

        During the year-end 2006 audit, which covered July 5, 2005 to June 30, 2006, the auditors

noted that road expenditures had increased by 583% between July 1, 2006 until January, 2007. Id.

at 118. The auditors were unable to verify the public use of $780,000 out of the roughly $1,500,000

paid to contractors for road work during that time. Material information was missing—either

location of the work, date of its completion, or the amount of the materials used. (“Usually there was

not a road indicated on the vendor invoice.”). The auditors also noticed that instead of the usual one

vendor providing road services, during this period (and not after) the county employed four. At trial,

the government questioned the auditor concerning the insufficiency of these documents:

        Q. What is the problem with the way the three temporary blacktoppers were
        invoicing it? What were you not able to do?

        A. We were not able to trace the information, one, to make sure that it was
        used—public funds were used for public roadways, or for a public project. We could
        not verify that. And within the county’s administrative code for the road department,
        it specifically instructs the county that they cannot use public funds for private roads.




                                                  -8-
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

Furthermore, the auditors found that the county had paid $69,411 to a county road worker above his

salary for constructing twenty-three bridges. Similarly, this could not be verified as a public

expenditure because the worker’s invoices did not list specific projects.

       The auditors complained to the Kentucky State police about their findings in December 2006,

which led to an investigation by the task force devoted to public corruption.


                                                 B

       On November 29, 2007, a federal grand jury returned an indictment on the four defendants.

       The indictment charged Thompson, Champion, Combs, and Adams with one count of

conspiring to pay individuals for voting in an election held in part to elect a United States

representative, in violation of 42 U.S.C. § 1973i(c), and intentionally misapplying government

property, valued at more than $5,000, of a local government that received federal funds, in violation

of 18 U.S.C. § 666 (“Count One”).4 The indictment also charged all four defendants with aiding and

abetting one another to intentionally misapply such government property, in violation of 18 U.S.C.

§§ 666 and 2 (“Count Two”).

       The indictment also charged Ronnie Adams with one count each of offering to pay and

paying voter “B.R.” to vote for Thompson in exchange for the county paving his private road,

(“Count Three”), and offering to pay and paying voter “B.M.” to vote for Thompson in exchange for




       4
       Knott County receives federal funds directly from the USDA, from FEMA, and indirectly
from the Kentucky River Area Development District and the Commonwealth of Kentucky
Transportation Cabinet.

                                                -9-
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

the county paving his private road, (“Count Four”), both in violation of 42 U.S.C. 1973i(c). The

defendants all pleaded not guilty.

           In June 2008, the district court held a 10-day jury trial. During trial, the defendants made

certain objections that are relevant to this appeal.

           First, defendants objected to the government’s introduction of the grand-jury testimony of

Tammy Brewer and Hoey Dobson. The court addressed the defendants’ objections the following

day, with this statement:

           The Government has argued that the significance of the statements that had been
           offered into evidence is that not [sic] that they were true, but that they were false. In
           fact, they were offered for that particular purpose. Those statements are establishing
           the foundation, in essence, for later showing the fact that they were false because of
           the conviction of the individuals who made the statements for perjury. . . . [T]here’s
           some [C]onfrontation [C]lause objections that always comes up in the context of
           allegations that a particular statement is hearsay.
           But . . . [t]hese are not hearsay statements. . . . [T]he Sixth Circuit concludes . . . that
           . . . when statements are offered to prove the falsity of the matter asserted, there’s no
           need to assess the credibility of the declarant [citing United States v. Hathaway, 798
           F.2d 902, 904–905 (6th Cir. 1986)].

The government responded to the defendants’ objections regarding the Brewer testimony, also,

stating:

           I think some of [defendants’] concerns about the—what was on that Brewer grand
           jury tape were well taken, and had there been objections before I played it, I would
           have agreed to redact some of that. So being sensitive to that, I have redacted the
           Hoey Dobson grand jury to its bare essentials to what we need to make our point . . . .

During his closing argument, the government again referred to Brewer’s and Dobson’s grand-jury

testimony, focusing on the fact that they made up a “fake alibi,” and this proved that she was a part

of a cover-up.


                                                     - 10 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

       Second, the defendants objected to the court’s admission of a television interview a local

news station conducted with Thompson. The interview was, according to defendants, thirty minutes

long before the news station edited it. Though the government played the broadcasted clip in its

entirety, the defendants argued that under the “rule of completeness” the government should have

to admit the full, thirty-minute-long interview. The judge overruled the objection.

       Third, defendants objected to a question posed by the prosecutor to Eldon Hicks, Knott

County’s jailer, during Hicks’s cross-examination. The prosecutor asked Hicks a series of questions

relating to the administration of Donnie Newsome, Thompson’s predecessor as Knott County

Judge/Executive, who had been convicted of vote buying, seeming to attempt to get Hicks to state

that Newsome’s administration had induced voters to vote for him by giving away free blacktop.

When Hicks stated that he had not been privy to Newsome’s actions when Newsome was elected,

the Prosecutor asked, “Was Donnie Newsome convicted of vote buying?” Thompson and Adams

objected that the prosecutor was attempting to inject “fairly extreme prejudice” into the proceedings.

After a bench conference with both sides and the agreement of all parties, the court admonished the

jury that Newsome’s conviction “did not include as a factual basis . . . the building of bridges or the

paving of roads.”

       The jury found all four defendants guilty of Count Two, aiding and abetting each other to

misapply government property, in violation of 18 U.S.C. § 666. Thompson, Combs, and Adams

were also convicted of Count One, conspiracy to misapply property and to buy votes, in violation

of 18 U.S.C. § 371. Adams was also convicted of Count Three, vote buying, in violation of 42

U.S.C. § 1973i(c), but not Count Four.

                                                - 11 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.




Post-Trial Motions

       In July 2008, prior to sentencing, Champion filed a motion for acquittal based on insufficient

evidence. The same day, Combs filed motions for acquittal and a new trial. Four days later,

Thompson and Adams filed a motion to join these motions.

       In addition to arguing that there had been insufficient evidence to support their convictions,

defendants also argued in their motions that they deserved a new trial because the prosecutor

engaged in flagrant misconduct during his closing argument, a portion of a television interview with

Thomson was improperly admitted, and prior grand-jury testimony of Tammy Brewer and Hoey

Dobson was improperly admitted. R.237 at 9, 12, 14.

       On February 9, 2009, the district court denied the motions in four separate orders. The court

determined that, drawing all inferences in favor of the government, sufficient evidence existed to

convict each of the defendants. The court stated that though there was “no evidence that Thompson

specifically directed anyone to gravel or blacktop a particular driveway or road,” Gayheart had

testified that Thompson and Champion directed him to build bridges on private property, and Randy

Campbell, the owner of East Kentucky Paving, was hired by Thompson and Adams. Witnesses

testified that Combs and Adams rode with them in their trucks and directed them where to put gravel

and pave. Campbell testified that Combs had asked him to prepare fake receipts to make it appear

that private citizens had paid for the services. Adams offered to pave Bobby Reynolds’s private

drive in return for the Reynolds family voting for Thompson. The court determined that the jury had

                                               - 12 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

sufficient evidence to find that, as the ultimate beneficiary of political goodwill, Champion’s,

Combs’s, and Adams’s actions were undertaken with the approval or direction of Thompson.

Moreover, when Thompson was put on notice of the suspicious activity by reporters, the court noted

that Thompson stated that all the jobs were for a public purpose and had been properly inspected,

indicating that he was covering up the expenditures.

       Regarding the prosecutor’s remarks, the court noted that, as the defendants did not object to

the prosecutor’s remarks at trial, the defendants were only entitled to a new trial if the remarks

“undermine[d] the fundamental fairness of the trial and contribute[d] to a miscarriage of justice.”

United States v. Young, 470 U.S. 1, 16 (1985).

       The court determined that the prosecutor’s complained-of comment that he hoped the jury

would do its “duty,” “while improper, [did] not rise to the level of being flagrant.” The court

determined that the complained-of remarks were isolated, not made to inflame the jury, and that

similar remarks had been held acceptable in prior cases. See United States v. Solivan, 937 F.2d 1146,

1151 (6th Cir. 1991) (“Unless calculated to incite the passions and prejudices of the jurors, appeals

to the jury to act as the community conscience are not per se impermissible.”).

       Regarding the television interview with Thompson, the court determined that the evidence

was properly admitted. The court first determined that the television interview was properly

admitted because the government played the clip in its entirety. Thompson argued that the unedited

interview was thirty minutes long, and that the rule of completeness, FED . R. EVID . 106, demanded

that, upon Thompson’s objection the entire thirty-minute interview should be admitted. However,

the government was only in possession of the edited clip of the interview that was actually broadcast.

                                                - 13 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

Because the government admitted and played this clip in its entirety, the court determined that Rule

106 had not been violated.

       Regarding the prior grand-jury testimony of Tammy Brewer and Hoey Dobson, the district

court also held that the evidence was properly admitted. The defendants objected at trial and in their

motion that the testimony violated the Confrontation Clause because the testimony constituted out-

of-court statements, offered to prove the truth of the matter asserted, and defendants had not had the

prior opportunity to cross-examine the declarants. FED . R. EVID . § 801(c); United States v.

Crawford, 541 U.S. 36, 53–54 (2004). The district court disagreed with the defendants that the

testimony was offered to prove the truth of the matter asserted. In fact, the court stated, the

testimony was acknowledged as being false, and had indeed led to Brewer and Dobson being

convicted of perjury. The court noted that these kinds of statements are admissible under Crawford.

See Crawford, 541 U.S. at 59 n.9 (“The [Confrontation] Clause . . . does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter asserted.”)).


Sentencing

       The four defendants were sentenced on February 2, 2009. Each of the defendants made

numerous objections to his particular pre-sentence report. The district court resolved all of the

objections to the pre-sentence reports at trial. Those objections relevant to the case on appeal are

discussed in turn.

       One major objection raised by all four defendants was to the pre-sentence reports’

determination of loss. The amount of loss was particularly important for two reasons: it affected the


                                                - 14 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

amount of mandatory restitution,5 and it affected the guidelines calculations for each defendant.6 The

probation officer calculated the amount of loss as the $780,814 in road expenditures that the auditors

could not validate, in addition to the $76,711 paid to county employees as independent contractors

for the construction of bridges without valid invoices. Thus, the total amount of loss was calculated

as $857,525.

        The defendants all objected to this loss amount, arguing that the government had not proved

that $857,525 had been spent on private property. Defendants objected specifically to Lonesome

Dove Road ($14,000), which they argued had been publicly maintained before the Thompson

administration. The defendants argued that, in fact, the government had only proved that $7,873.50

of the total unaccounted-for amount had been proved to have been spent on private property and

bridges.

        At sentencing, the court heard arguments from all defendants and the government as to the

amount of loss. The court noted that to prove guilt at trial, the government only needed to prove

misapplication of public funds of more than $5,000. The court noted, however, that the pool of

unaccounted-for funds was much larger, and the court could consider that amount at sentencing. The

court stated that it was not required to determine the amount of loss with mathematical certainty, but



        5
           Restitution was mandated by 18 U.S.C. § 3663A(c)(1)(B), which states that for “any offense
. . . in which an identifiable victim or victims has suffered . . . pecuniary loss,” the court “shall order,
in addition to, . . . any other penalty authorized by law, that the defendant make restitution to the
victim.”
        6
        The pre-sentence report’s calculation of loss as $857,525 resulted in a 14-level increase in
the offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(H).

                                                   - 15 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

only to make a reasonable estimate. The court stated, in its discussion of loss related to paving and

blacktopping, that it was “not inclined to limit [consideration] just to what was presented at trial.

[T]here’s a loss here that is greater than that, but is somewhat less than the $780,000, which is the

pool of possible loss [for paving and blacktopping].” The court noted that because there was no

documentation, it was impossible to know how much had been spent on private property.

       The defendants reiterated the arguments made in their objections to the pre-sentence reports’

loss calculations, continuing to argue that the government had only carried its burden of proving by

a preponderance of the evidence about $7,000 in loss. Additionally, Phillip Champion’s lawyer

argued at sentencing that, because he was not convicted of the conspiracy charge (Count One),

Champion should not be held jointly and severally liable with the other defendants for the loss.

       The government, in its statement, described the context surrounding the offenses. First, it

stated, Thompson’s administration took out bonds in the amount of $1.5 million for roads. Mountain

Enterprises, the county’s long-time contractor, worked for the county after this money was received.

However, Mountain Enterprises stopped working for the county “because they didn’t like what was

. . . happening about where they were being told where to put the blacktop.” After Mountain

Enterprises pulled out, the $780,000 that was unaccounted for was spent on “little choppy jobs, up

to cemeteries, to people’s houses, places that hadn’t been blacktopped before.” The jobs were not

documented, but “the defendants should not get a windfall by virtue of an intentional act of not

documenting.” The government stated that it believed that some of the money was spent on public

roads, but that at least a quarter of the $780,000 was spent on private roads.



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Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

       Regarding the bridges, the government noted that Gayheart had testified as to around 20

bridges. Of these, it was again unclear, due to a lack of documentation, how many were built on

private property. The government was not exact, but seemed to argue that about ten of the bridges

should be considered to have been on private property. In total, the government argued that the

defendants should be put in the U.S.S.G. 2B1.1 loss category of $200,000–$400,000, and that

restitution should be ordered for “the lower end of that $200,000.”

       The court, after considering all arguments with regard to loss, decided that a reasonable

estimate for the amount of loss attributable to the paving and blacktopping of private roads was 25%

of the over $780,000 unaccounted for, or $195,203.50. This calculation was in accord with the

government’s recommendation.

       The court then determined that the evidence at trial indicated that at least five or six of the

bridges constructed were shown to have been private. It decided that it would use five bridges for

its loss determination. Evidence at trial showed that the bridges cost somewhere from $3,000 to

$4,500 to construct. The court used $3,700 as its cost for a bridge, making the total bridge loss

$18,500.

       The court also added other expenses. Evidence had shown that a county foreman was paid

to build bridges after hours, and that he had been paid $69,411 on top of his county salary. The court

determined that $15,089 of this amount should be considered to have been paid for work on private

property, and added to the total loss. For gravel, the court estimated that $10,000 should be added

to the total loss.   Adding all of these figures together—$195,204, $18,500, $15,089, and

$10,000—the total loss determined by the court was $238,793.

                                                - 17 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

       After the amount of loss was determined, the court recalculated the offense level for each

defendant. The court noted, in its discussion of the factors in 18 U.S.C. § 3553(a), that it saw a need

for the sentences to reflect the seriousness of the offense, due to the pervasiveness of political

corruption in the area and the need for a “cultural change.” The court, however, did not feel, for any

of the defendants, that recidivism was a concern, or that rehabilitation was necessary. The court

noted that the misappropriation of funds in this case went to benefit county constituents, not the

defendants themselves. The court also stated that the defendants had all served their community well

despite their offenses. The court stated that this was one of the rare cases where the time the

defendants were imprisoned would be time that they would not be benefitting their community.

Based on these considerations, the court chose to depart from the sentencing guidelines for each

defendant.

       Thompson’s recalculated offense level was 25, which gave him a guidelines range of 57 to

71 months of imprisonment. The court departed from the guidelines and sentenced Thompson to

40 months of imprisonment for each of Counts One and Two, to run concurrently. Thompson was

also sentenced to three years of supervised release, and was held jointly and severally liable with the

other three defendants to pay mandatory restitution of $238,793.

       Combs’s recalculated offense level was 26, with a guidelines range of 63 to 78 months of

imprisonment. The court departed from the guidelines and sentenced Combs to 36 months of

imprisonment for each of Counts One and Two, to run concurrently. Combs was also sentenced to

three years of supervised release, and was held jointly and severally liable with the other three

defendants to pay mandatory restitution of $238,793.

                                                - 18 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

        Champion’s recalculated offense level was 23, with a guidelines range of 46 to 57 months

of imprisonment. The court departed from the guidelines and sentenced Champion to 18 months of

imprisonment for Count Two. Champion was also sentenced to three years of supervised release,

and was held jointly and severally liable with the other three defendants to pay mandatory restitution

of $238,793.

        Adams’s recalculated guidelines range was 24, with a guidelines range of 51 to 63 months

of imprisonment. The court departed from the guidelines and sentenced Thompson to 32 months

of imprisonment for each of Counts One, Two, and Three, to run concurrently. Adams was also

sentenced to three years of supervised release, and was held jointly and severally liable with the other

three defendants to pay mandatory restitution of $238,793.


Post-Sentencing Motions

        On August 25, 2009, all four defendants joined in a motion for a new trial based on Brady

and Giglio violations. The defendants alleged that the prosecution failed to appropriately disclose

grants of immunity to twenty witnesses. The United States responded, additional discovery was

taken, and the district court held an evidentiary hearing on the motion on February 22, 2010.

        On April 4, 2011, the district court issued an opinion denying the defendants’ motion. The

court stated that to make out a Brady/Giglio violation, the defendants had to show three elements:

“[1] the evidence must be favorable to the accused, either because it is exculpatory, or because is

impeaching; [2] that evidence must have been suppressed by the state, either willfully or

inadvertently; and [3] prejudice must have ensued.” A defendant is prejudiced, the court noted,


                                                 - 19 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

when “there is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433–34 (1995).

       At issue were the United States’s promises not to prosecute a number of its witnesses if they

provided honest testimony. The court began its analysis by stating that such grants of immunity

were impeaching, and thus favorable toward the defendants. Thus, the defendants had made out the

first element of a Brady claim.

       However, the court began to diverge from defendants on the second element—that the

government suppressed the evidence. The court found that the witnesses fell into three categories:

those for whom the government timely provided evidence of immunity, those for whom the

government provided delayed or tardy evidence of immunity, and those for whom no evidence of

immunity was provided.

       First, the government had provided defendants with the grand-jury testimony of ten witnesses

eight days before trial. This grand-jury testimony contained the government’s promise of immunity

to these defendants. Defendants conceded that they had received these transcripts. For these

transcripts, the court determined that the government had complied with its obligations under Brady.

       Second, the court found that the government had given the defendants the grand-jury

testimony of an additional eight witnesses during trial, either the night before or the morning of the

witness’s testimony. The defendants conceded that they received the transcripts and that they

showed the government’s grants of immunity. However, the defendants argued that the transcripts

were given to them too late to be of use. The court disagreed. It noted that “[a]ny disadvantage that

a defendant might suffer because of the tardiness of impeachment material can be cured by asking

                                                - 20 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

for a recess,” and that the defendants never requested such a recess. United States v. Crayton, 357

F.3d 560, 569 (6th Cir. 2004).

       The court also determined that the defendants’ trial strategy showed that they had not been

prejudiced by the delayed receipt of the transcripts. The court described the defendants’ strategy as

attempting to prove that the roads in question were public, and therefore properly paved by the

county. Showing that the government had granted the witnesses immunity, and therefore implying

that their acceptance of free road paving was potentially criminal—would have undermined that

strategy. The court observed, for example, that the defendants chose not to impeach any of the

witnesses for which they knew about the immunity guarantees.

       Third, the court determined that there was a category of eight witnesses for whom the

promises of immunity were not disclosed to the defendants at any time. However, the court found

that the defendants failed to meet their burden of proving that these witnesses received promises of

immunity. The defendants did not provide evidence suggesting that the witnesses received immunity

and failed to rebut the government’s argument that they did not provide immunity to those witnesses.

The court noted that the evidentiary hearing on the motion gave the defendants ample time to

develop the record, but they failed to do so.

       Finally, the court considered all of the evidence collectively to see if it rose to the level of

prejudicing the defendants. The court noted that each piece of evidence was identical, so that the

difficulty in impeaching the witness was essentially the same for each witness. Further, the court

noted that this case was based on the corroborating evidence of many witnesses, rather than hinging

on the testimony of one witness who it would have been extremely important to impeach. Finally,

                                                - 21 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

the court noted again that the defendants chose not to impeach the witnesses who they knew had

been promised immunity. Based on these reasons, the court determined that the evidence, viewed

collectively, did not prove that the defendants had been prejudiced.

        Based on these reasons, the court held that the defendants had failed to prove a Brady/Giglio

violation, and denied the motion for a new trial.

        All four defendants appeal the sufficiency of the evidence that led to their convictions. They

also all appeal the district court’s decision not to grant a new trial based on the prosecution’s alleged

Brady violations. Champion and Combs argue that certain evidence was improperly admitted or

excluded at trial. Combs argues that the application of the statute against misappropriating funds

was unconstitutionally applied. Thompson and Adams argued that the prosecutor’s question about

Donnie Newsome and the prosecutor’s closing argument violated their due-process rights. Finally,

Champion and Combs appeal their sentences.


                                                    II

                                                    A

        We review the sufficiency of the evidence to support the defendants’ convictions first,

“because it is determinative of whether the appellant may be retried.” United States v. Parkes, 668

F.3d 295, 300 (6th Cir. 2012) (quoting United States v. Aarons, 718 F.2d 188, 189 n.1 (6th Cir.

1983)) (internal quotation marks omitted). The “critical inquiry on reviewing the sufficiency of

evidence to support a criminal conviction . . . is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of the


                                                 - 22 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). This is a

heavy burden. We begin by determining the essential elements of the relevant offenses—those

embodied in Counts One, Two, and Three—and then examine the evidence supporting those

elements.

        Count One stated that the defendants conspired to pay individuals for voting in an election

held in part to elect a United States representative, in violation of 42 U.S.C. § 1973i(c), and

intentionally misapplied government property, valued at more than $5,000, of a local government

that received federal funds, in violation of 18 U.S.C. § 666.

        To prove a violation of conspiracy, the government bore the burden of showing “an

agreement to commit an unlawful act.” United States v. Jiminez Recio, 537 U.S. 270, 274 (2003).

Participation in a conspiracy need not be proven by direct evidence. United States v. Collins, 78 F.3d

1021, 1038 (6th Cir. 1996). A “tacit or mutual understanding to engage in a common plan is

sufficient” to prove a conspiracy. Id. at 1037. The government was required to prove that

Thompson agreed with the other defendants to commit the underlying offense—either vote buying

or the intentional misapplication of funds.

        In order to prove the first potential underlying offense, under 42 U.S.C. § 1973i(c), the

government was required to prove that Thompson participated in a conspiracy to pay an individual

to vote.

        In order to prove the second potential underlying offense, under 18 U.S.C. § 666, the

government bore the burden of demonstrating that: “(1) the defendant is an agent of an organization,

State, local or tribal government, or an agency of such government; (2) the defendant embezzles,

                                                - 23 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person

other than the rightful owner or intentionally misapplies, property that—(i) is valued at $5,000 or

more, and (ii) is owned by, or is under the care, custody, or control of such organization,

government, or agency; and (3) such organization, government, or agency receives at least $10,000

in federal assistance in any one-year period.” United States v. Freeman, 86 F. App’x 35, 38–39 (6th

Cir. 2003) (emphasis added) (citing 18 U.S.C. § 666(a)(1)(A), (b)).

       Thompson argues that the government produced no evidence that he joined a conspiracy to

exchange blacktop and bridges for votes or that he intentionally misapplied Knott County property.

Thompson’s primary argument seems to be that the government did not give direct proof of his

involvement in a conspiracy.

       It is true that the government did not provide direct evidence that Thompson was engaged

in the conspiracy. However, the government provided ample circumstantial evidence to support a

conviction. Some of the more powerful pieces of evidence were (1) that Thompson hired Randy

Campbell’s paving company, East Kentucky Paving, (2) that Campbell was then directed by

Thompson’s employees to pave private roads, (3) that Thompson’s employees asked Campbell to

create false receipts for the paving, (4) that Thompson told reporters that each of the jobs performed

was done for a public purpose and had been properly inspected, and (5) that this activity was engaged

in during the months leading up to Thompson’s re-election. Additionally, Randall Gayheart testified

that he built bridges on private property as directed by Thompson and Champion.




                                                - 24 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

        Viewing the evidence in the light most favorable to the government, a rational trier of fact

could find beyond a reasonable doubt that Thompson agreed, if even tacitly, to misapply public funds

and/or to buy at least one vote. Thompson’s insufficiency claim must fail.

        Like Thompson, Combs argues that the government failed to prove that he was a member

of a conspiracy—Combs argues that the evidence presented was not merely circumstantial, but

required a “leap of faith in order to support a conviction.” Combs Brief at 33 (quoting United States

v. White, 932 F.2d 588, 590 (6th Cir. 1991)) (internal quotation marks omitted).

        We disagree. The government not only presented evidence that Combs was present at the

meeting where Campbell was hired, but he was named as the individual who directed Campbell’s

paving, as well as the paving done by other drivers. Testimony revealed that Combs directed

Campbell to pave Combs’s driveway, as well as Tammy Brewer’s and Hoey Dobson’s, who were

later convicted of perjury for testifying that they paid. Finally, Combs was the individual who asked

Campbell to prepare false receipts for the paving.

        Combs argues that these acts were merely acts done in his “line of work,” and that they are

insufficient to support a conspiracy conviction. This objection is unavailing. It is clear from the

record that the government presented sufficient evidence for a rational trier of fact to convict Combs

of being a member of a conspiracy to misapply public property. Combs’s sufficiency argument must

fail.

        Adams likewise fails in his argument that the government failed to prove that he was part of

the conspiracy to buy votes or misapply public property. However, Adams arranged and attended

the meeting in which Campbell was hired. Testimony showed not only that he directed paving of

                                                - 25 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

private property, but that he offered paving in exchange for votes for Thompson. Adams’s

sufficiency argument is without merit.

       Unlike the other three defendants, Phillip Champion was not convicted of Count One of the

indictment. Champion was not convicted of conspiracy, but rather only of the misapplication of

public funds. Specifically, the count charged the defendant with “aiding and abetting.” Conspiracy

differs from aiding and abetting because conspiracy involves an agreement to participate in a

wrongful activity, while aiding and abetting can be accomplished if the defendant “knowingly gave

substantial assistance to someone who performed wrongful conduct,” even if the defendant did not

necessarily agree to join in the conduct. See Aetna Cas. & Sur. Co. v. Leahey Constr. Co., 219 F.3d

519, 534 (6th Cir. 2000) (internal quotation marks omitted) (quoting Halberstam v. Welch, 705 F.2d

472, 478 (D.C. Cir. 1983)) (explaining the difference between conspiracy and aiding and abetting

in the civil context). Therefore, the government was required to prove that Champion at the very

least provided “substantial assistance” to one who misapplied public funds.

       Viewing the evidence in the light most favorable to the government, a rational trier of fact

could have found the evidence sufficient to convict Champion, not only of aiding and abetting the

misapplication of public funds, but of misapplying the funds himself. Testimony showed that

Thompson placed Champion in charge of the day-to-day operations of the road department.

Champion was present in the meeting where Campbell was hired. Testimony showed that he

directed contractors Campbell, Slone, and Hays where to lay gravel, including instructing them to

lay gravel on private property, and that he directed Gayheart’s bridge building, much of which was



                                              - 26 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

done on private property. This evidence is sufficient to show that Champion knowingly applied

public resources to private property. Champion’s sufficiency claim must fail.


                                                  B

       We next address the defendants’ claim that the district court erred when it denied their

motion for a new trial based on alleged Brady/Giglio violations, as it is the only other claim in which

all the defendants join. Brady stands for the proposition that it is a violation of a defendant’s due-

process rights for the prosecution to suppress evidence favorable to the defendant. Brady v.

Maryland, 373 U.S. 83, 88 (1963). To prove a Brady violation, the defendants must show three

elements, as set forth by Strickler v. Green, 527 U.S. at 281–82. They must establish (1) that the

evidence was favorable to them, (2) that it was suppressed (whether intentionally or not) by the

government, and (3) that prejudice ensued. Giglio modified Brady by holding that a new trial is not

automatically required when there has been a Brady violation, but only when the evidence was

material, when it could “in any reasonable likelihood have affected the judgment of the jury.” Giglio

v. United States, 405 U.S. 150, 154 (1972) (internal quotation marks omitted).

       As recent cases have indicated, this circuit has sometimes reviewed a district court’s denial

of a motion for a new trial based on Brady violations under a de novo standard of review, and

sometimes under an abuse-of-discretion standard. United States v. Douglas, 634 F.3d 852, 860 (6th

Cir. 2011). We need not resolve the inconsistency today, however, because the defendants’

argument fails under either standard.




                                                - 27 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

       As the district court stated in its order denying defendants’ motion, the defendants have failed

to prove the second and third elements of their Brady claim. First, the defendants have failed to

prove that any promises of immunity existed other than the ones that they were provided with by the

government. The defendants were given the opportunity to develop the record with an evidentiary

hearing, but failed to show that undisclosed grants of immunity existed. The worst the defendants

were able to prove was that the government failed to provide them with some of the grand-jury

transcripts containing evidence of immunity until the morning of the day that witness was to testify.

However, this circuit has held that disclosures of favorable evidence made on the day of trial are not

Brady violations, “unless the defendant has been prejudiced by the delay in disclosure.” Norris v.

Schotten, 146 F.3d 314, 334 (6th Cir. 1998). The defendants were given numerous other examples

of witness immunity before trial began, and chose not to impeach witnesses with them.

       In fact, as the district court pointed out, the defendants’ trial strategy was to prove that the

roads paved were public, not to prove that the witnesses had in fact not paid for paving on their

private roads and drives. Therefore, defendants have not shown that they were prejudiced by the

delay, because they have given no indication that they would have used the promises of immunity

had they been disclosed earlier. For these reasons, we affirm the district court’s denial of

defendants’ motion for a new trial on Brady/Giglio grounds.




                                                - 28 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

                                                 C

         Next, we address Combs’s and Champion’s evidentiary arguments. Both defendants argue

that the district court erred when it allowed in evidence what they allege to be hearsay—the grand-

jury testimonies of Tammy Brewer and Hoey Dobson. The district court determined that this

evidence was admissible because it was not offered to prove the matter asserted; in fact, it was

admitted with the precise understanding that the testimony was false and had served as the basis for

the declarants’ perjury convictions.

         Combs argues that while the grand-jury testimony may have been admitted to have been false

in some respects, it was nevertheless admitted for its truth in others. He states that Brewer’s and

Dobson’s statements that they paid for their blacktop were false and acknowledged as such, but that

their statements that they received blacktop, were given receipts, and did not know who paid for the

blacktop were statements offered for their truth. Combs Brief at 39–40. Champion does not argue

that Brewer and Dobson’s testimonies were offered for their truth. Rather, Champion argues that

there was “no way for [him] to challenge the alleged falsity of these statements.” Champion Brief

at 19.

         We review the district court’s evidentiary rulings for an abuse of discretion. Trepel v.

Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir. 1999) (citing Gen. Elec. Co. v. Joiner, 522 U.S.

136, 141 (1997) (“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”)).

A court abuses its discretion only if we are left with a “definite and firm conviction that the trial




                                               - 29 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

court has committed a clear error of judgment.” Hall v. Liberty Life Assurance Co. of Boston, 595

F.3d 270, 275 (6th Cir. 2010) (internal quotation marks omitted).

        The district court did not abuse its discretion when it overruled defendants’ hearsay objection.

The court carefully considered whether the grand-jury testimony was being offered for its truth,

determined it was not, and cited to relevant, binding precedent to support this decision. In fact, the

case cited was on point. In it, this court stated:

        When statements are offered to prove the falsity of the matter asserted, there is no
        need to assess the credibility of the declarant. Since there is no need to assess the
        credibility of the declarant of a false statement, we know of no purpose which would
        be served by extending the definition of hearsay to cover statements offered for the
        falsity of the matter asserted. We therefore join those courts which have concluded
        that statements offered to prove the falsity of the matter asserted are not hearsay.


Hathaway, 798 F.2d at 905. Moreover, the Confrontation Clause is not violated by testimony that

is not offered for the truth of the matter asserted.         Crawford, 541 U.S. at 59 n.9 (“The

[Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.”) (emphasis added).

        The government’s statements regarding Brewer and Dobson’s grand-jury testimony, both

during trial and during its closing argument, indicate that the government offered the unquestionably

perjurious testimony precisely to prove that Brewer and Dobson made false statements under oath

to cover up wrongful acts. The district court did not abuse its discretion when it determined that this

testimony was not hearsay.




                                                 - 30 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

          Champion also argues that the district court erred when it admitted the roughly thirty-second

news clip of a television interview with Thompson.               Champion argues that the “rule of

completeness” required that the court admit the entire thirty-minute-long interview that the news

station conducted with Thompson, and not the shorter clip that was actually played on air.7

Champion cites no other legal authority in support of his position.

          The court did not abuse its discretion when it overruled the defendants’ objection that the rule

of completeness required the government to play the entire television interview with Thompson. The

common-law rule of completeness is partially codified in Federal Rule of Evidence 106, which

states:

          If a party introduces all or part of a writing or recorded statement, an adverse party
          may require the introduction at that time, of any other part—or any other writing or
          recorded statement—that in fairness ought to be considered at the same time.


FED . R. EVID . 106. The district court noted that defendants’ reliance on the rule of completeness was

misplaced in this instance because “[t]his was not a situation where the government read a portion

of the deposition and the [d]efendants then sought admission of the entire deposition in order to put

the other portion in appropriate context. Although the news clip had been pared down, the

government was not in possession of the entire interview.” In other words, there was no complaint

tenable under the rule of completeness because the government admitted 100% of what they were

in possession of—the televised clip. Moreover, Champion has not offered any evidence that he was


          7
        Generally, the evidence was admissible as a statement of a party opponent. FED . R. EVID .
801(d)(2)(A) (describing such a statement as “not hearsay”).

                                                   - 31 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

that he was prejudiced by the admission of the clip and not the full interview. Champion’s argument

must fail.



                                                     D

        Combs argues that the application of the statute against misappropriating funds, 18 U.S.C.

§ 666, was unconstitutionally applied, such that it will “embrace a substantial number of potentially

unconstitutional applications.” Combs Brief at 48–49. Combs further asserts that the manner in

which the statute was applied was so “broad” as to result in “the burdening of innocent associations

or expressions or statutes . . . creates unreviewable prior restraints on First Amendment rights and

are overboard [sic] as a matter of law. When there is a realistic danger that a statute itself will

significantly compromise recognized First Amendment protection of parties not before the Court[,]

those statutes are subject to facial attack . . . .” Id. at 49.

        Combs’s argument is too vague to merit serious consideration. While overbreadth is of

course a recognized concern, Combs provides the court with no reason to believe that the district

court erred when it determined that 18 U.S.C. § 666 was not applied in an overbroad manner. The

relevant section of the statute states:

        Whoever . . . being an agent of an organization, or of a state, local, or Indian tribal
        government, or any agency thereof . . . embezzles, steals, obtains by fraud, or
        otherwise without authority knowingly converts to the use of any person other than
        the rightful owner or intentionally misapplies, property that . . . is valued at $5,000
        or more, and . . . is owned by, or under the care, custody, or control of such
        organization, government, or agency . . . shall be fined under this title, imprisoned
        not more than 10 years, or both.


                                                   - 32 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

18 U.S.C. § 666(a)(1). To make out a claim of a statute being applied in an overbroad manner, the

party claiming overbreadth must show that “the existence [of the statutory construction] . . . may

cause others not before the court to refrain from constitutionally protected speech or expression.”

United States v. Jeter, 775 F.2d 670, 677 (6th Cir. 1985) (quoting Broadrick v. Oklahoma, 413 U.S.

601, 612 (1973)) (internal quotation marks omitted). In order to implicate the overbreadth doctrine,

the “primary conduct which is affected by the law at issue must to a substantial extent be the kind

of expressive and associational behavior which at least has a colorable claim to the protection of the

First Amendment.” Id. at 678 (emphasis and alterations omitted).

       The overbreadth doctrine does not apply in this case. The statute, 18 U.S.C. § 666, does not

implicate the First Amendment, because no person has a constitutional right to misapply property.

Nor has the statute been applied in such a way as to threatened the legitimate exercise of First

Amendment rights. Combs’s constitutional argument is without merit.



                                                  E

       Thompson and Adams argue that the government violated their due-process rights when the

prosecutor asked Eldon Hicks about Donnie Newsome’s prior conviction, and when the prosecutor

made certain statements during closing argument. We address these arguments in turn.

       Before trial, Thompson moved to exclude evidence of corruption in prior county

administrations, including Donnie Newsome’s conviction. The government responded that it did

not intend to discuss prior political impropriety in Knott County, but that if the defendants pursued


                                                - 33 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

an “everybody does it” defense that the government might “come back” with statements regarding

past political corruption. The court granted the motion, “consistent with the Government’s

statements.”

       Because the court granted the defendants’ motion to “limit” argument on past political

corruption, Thompson and Adams now claim that the prosecutor’s mentions of Newsome—three

in total—constituted flagrant misconduct sufficient to warrant reversal. They argue that, though the

remarks were isolated, the prosecutor “deliberately violated the court’s order to get prejudicial and

inadmissible evidence before the jury.” The first reference to Newsome was the prosecutor’s asking,

“Was Donnie Newsome convicted of vote buying?” during Eldon Hicks’s cross-examination. This

was the only remark of the three to which the defendants objected. When Thompson and Adams

objected to the question, the court admonished the jury, on the agreement of the parties, that

Newsome’s conviction “did not include as a factual basis . . . the building of bridges or the paving

of roads.” The second and third were remarks made during closing argument. The prosecutor said

that the 2006 paving done by Thompson was “Donnie Newsome on steroids, this $1.5 million of

blacktopping,” and stated that the defendants had “kick[ed] it up a notch” from prior administrations,

though conceding that “Donnie Newsome . . . handed out gravel like it was pizza.”

       “When addressing claims of prosecutorial misconduct, we first determine whether the

challenged conduct was improper . . . .” United States v. Johnson, 581 F.3d 320, 329 (6th Cir. 2009).

If the remark was improper, we analyze whether it was “flagrantly improper”—that is, whether (1)

the prosecutor intended to mislead the jury; (2) whether the remark or remarks was isolated or


                                                - 34 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

pervasive; (3) whether they were deliberately made; and (4) whether the overall evidence against the

defendant was strong. We “review prosecutorial misconduct claims for an abuse of discretion.”

Ibid.

        The prosecutor’s remarks in this case do not require reversal, for several reasons. First, the

court gave a swift curative instruction regarding the question the prosecutor asked Hicks during

cross-examination. In light of that instruction, we do not believe the jury misunderstood the remark.

Johnson, 581 F.3d at 330 (citing United States v. Wilson, 199 F. App’x 495, 498 (6th Cir. 2006)).

Further, the government’s remarks during closing argument are not only given wide leeway, United

States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008), but these remarks were made after the defense

had appealed to the jury that conduct such as defendants’ was not unusual in Knott County, stating,

for example, that prior judges and administrations had directed employees to gravel the same areas

as Thompson. The court expressly allowed the government to retort with comments about prior

political corruption in the county in such an instance. The remarks made about Newsome do not

require giving the defendants a new trial.

        In addition to the statements regarding Newsome, the prosecutor, during closing argument,

made a few other statements that Thompson and Adams now argue warrant reversal. The prosecutor

stated that he had no doubt that the defendants were guilty, that the jury had a duty to hold the

defendants accountable, that they had a “civic duty” to convict, and he hoped they would do their

duty.




                                                - 35 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

       The defendants did not object to the prosecutor’s closing argument below, so our review is

for plain error only. Henry, 545 F.3d at 376. Plain-error review requires us to determine “whether

(1) an error occurred in the district court; (2) the error was obvious or clear; (3) the error affected

defendant’s substantial rights; and (4) this adverse impact seriously affected the fairness, integrity,

or public reputation of the judicial proceedings.” Ibid. (internal quotation marks omitted). Errors

generally do not affect a defendant’s “substantial rights” unless they affect the outcome of the trial.

United States v. Davis, 514 F.3d 596, 615 (6th Cir. 2008).

       The remarks the defendants complain amounted to plain error are in fact relatively

harmless—only comprising a few sentences within thirty pages of closing argument. We give “wide

latitude to a prosecutor during closing argument, . . . recognizing that inappropriate comments alone

do not justify reversal where the proceedings were otherwise fair.” Henry, 545 F.3d at 377.

Defendants have not provided any evidence or case law suggesting that the prosecutor’s remarks rose

to the level of plain error or prevented a fair trial. Therefore, their argument must fail.



                                                   F

       Combs and Champion appeal their sentences. Combs argues that, by determining the amount

of restitution, the court engaged in improper fact-finding that increased the penalty for his offense,

in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

       Apprendi holds that “any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Ibid.


                                                - 36 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

Combs raised this objection in his sentencing memorandum, and it was addressed by the district

court at the sentencing hearing. The district court stated, “I do not believe that the computation of

loss in this case must be shown through evidence presented at trial under Apprendi . . ., so I will deny

that objection.”

        The district court is correct. This court has held, in keeping with other circuits, that Apprendi

does not apply to restitution calculations because the restitution statute does not contain a maximum

amount. United States v. Bearden, 274 F.3d 1031, 1042 (6th Cir. 2001); Dohrmann v. United States,

442 F.3d 1279, 1281 (11th Cir. 2006); United States v. Carruth, 418 F.3d 900, 902–04 (8th Cir.

2005); United States v. Wooten, 377 F.3d 1134, 1144 n.1 (10th Cir. 2004); United States v. Syme,

276 F.3d 131, 159 (3d Cir. 2002); United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir. 2000).

The district court did not err when it determined that Apprendi does not apply to the determination

of restitution. Combs’s argument must fail.

        Champion argues that his sentence was unreasonable because he was held jointly and

severally liable with his co-defendants for the $238,793 in restitution ordered by the court. He

claims that he should not bear liability for this amount because he was acquitted of Count One, the

conspiracy count. Champion raised this argument in his sentencing memorandum and raised it in

the sentencing hearing. The court nevertheless determined that Champion should be jointly and

severally liable, simply stating, “I’m required under the law to impose restitution, and I’m finding

that it’s a joint and several obligation.”




                                                 - 37 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.

       We review de novo whether restitution is legally permitted. United States v. Comer, 93 F.3d

1271, 1278 (6th Cir. 1996). We then review the amount of restitution ordered for an abuse of

discretion. Ibid.

       A “district court may consider acquitted conduct in determining a defendant’s offense level

under the Sentencing Guidelines if the government has proved by a preponderance that relevant,

acquitted conduct has occurred.” Comer, 93 F.3d 1284. A court, however, “may not attribute a loss

to a defendant based on mere speculation.” Ibid.

       Champion was found guilty of misapplying public property; he was, therefore, required to

pay restitution.8 The district court was correct to require him to pay. Further, the district court did

not err in determining that Champion was liable for the full amount of loss attributed to the other

defendants. The government presented ample evidence that Champion was a participant in the

misapplication of county property, making it appropriate for the district court to determine that

Champion participated in the conspiracy, even if his participation was not proved beyond a

reasonable doubt. Moreover, the court set the amount of restitution at a conservative one-quarter of

the $780,000 the county could not account for. The court did not abuse its discretion in setting the

amount of restitution. Comer, 93 F.3d at 1285.




       8
        18 U.S.C. § 3663A(c)(1)(B) states that for “any offense . . . in which an identifiable victim
or victims has suffered . . . pecuniary loss,” the court “shall order, in addition to, . . . any other
penalty authorized by law, that the defendant make restitution to the victim.”

                                                - 38 -
Nos. 09-5181, 09-5189, 09-5190, 09-5191, 11-5453, 11-5455, 11-5454
United States v. Thompson, et al.


                                                 III
       Based on the foregoing review of the record, we find no error in the district court’s decisions.

For this reason, the defendants’ convictions and sentences are AFFIRMED.




                                                - 39 -
