Appeal from the United States District Court for the Middle District of Louisiana
Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
Thomas A. Nelson, Jr., the former mayor of New Roads, Louisiana, appeals his conviction for corruption-related offenses, along with the district court's calculation of his sentencing range. For the reasons articulated below, we AFFIRM Nelson's conviction, VACATE his sentence, and REMAND for resentencing consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
The government's interest in Nelson arose from its undercover investigation of another Louisiana mayor, George Grace. As part of that investigation, Federal Bureau of Investigation ("FBI") agents and paid cooperating witness William Myles posed as representatives of a waste container cleaning system business known as the Cifer 5000 ("Cifer"). The FBI instructed Myles, a businessman with a real estate development background, to be "very overt" about his willingness to participate in corrupt activity to obtain government contracts.
Through his conversations with Grace, Myles discovered that Grace considered Nelson, along with four other mayors, to be part of a close-knit group that Grace was "training." Although Myles may have been the first to use the term "A-Team" to describe this group, Grace picked up on the moniker. Grace identified Nelson as likely willing to accept cash, rather than stock options, in exchange for helping Cifer. Grace also singled out another member of this group of five as a "clean" politician who would want to do things "straight up, " which Myles understood to imply that the others would not.
Myles, at Grace's suggestion, invited Grace, Nelson, and Lewis, another member of Grace's A-Team, to dinner at a steak house in Baton Rouge in August 2008. Myles paid for dinner and made it "absolutely" clear that he was trying to get contracts for Cifer's services in the mayors' towns. On October 1, 2008, Myles and Grace met privately to discuss the A-Team mayors further; Grace told Myles that the other mayors would "listen and do what I tell them." After Myles mentioned "tak[ing] care of" the mayors in return for Cifer contracts in their towns, Grace said, "Well, I know Nelson, from New Roads. He ready to go." Grace also instructed Myles that he would act as a middleman between Myles and the other mayors. According to Grace, the mayors trusted Grace enough to believe that he would take the fall if the group got into trouble.
Myles and FBI special agents, in their undercover capacity as Cifer representatives, met with Grace, Nelson, and two other A-Team mayors at Myles's New Orleans condo on October 6, 2008. Myles had asked Grace not to invite the mayor whom Grace identified as "clean." Cifer paid for the mayors' hotel rooms for the night and provided them with tickets to a Saints game. At the meeting, Myles explained to the mayors the legal bidding process for securing public contracts, but also told the group: "I might not even talk to you outside of this room but this is the group that helping us and since y'all guys willing to help us, we willing to help you guys." After Nelson expressed particular enthusiasm for Cifer, one of the agents asked whether Nelson could secure the contract himself or whether it would need to be put to a city council vote. Nelson responded: "[Y]ou're talking about RFPs [a step in the formal bidding process] and all those thing[s], but you could—I could probably look at it almost as a professional service." He continued: "So if it's a professional service, then I make the call . . . . The Council doesn't make the call on that." Myles understood Nelson to mean that he was willing to circumvent the RFP bidding process.
At some point during the evening, Grace and an FBI agent, Johnson, went into another room and Johnson gave Grace $2, 000 in cash. Later that night, Grace came to Nelson's hotel room and gave Nelson $300 in cash, telling him the money was from Johnson. Grace told Nelson that he could "do whatever he wanted" with the money, but Nelson later characterized the $300 payment as a quid pro quo: "If I'm going to accept, I mean I couldn't, you know, I'm going to perform." Nelson and one of the other mayors agreed that they would not speak about the payments again.
Nelson met with Cifer "businessmen, " including Myles and Johnson, again on October 30, 2008. At that meeting, Nelson accepted $400 in cash from Johnson and a ticket to a Hornets game from Myles. The group discussed having Nelson write an official "letter of support" to give to investors. The next day, October 31, 2008, Nelson told Myles: "Y'all tell me when the time is right to make the move on, we can do it. And the sooner we get this knocked out, then we can get the other little deal I was telling you about." Myles testified that the "other little deal" referred to Nelson seeking financial backing for his own business venture, a "video bingo" project.
On November 11, 2008, Nelson sent a letter to a "private investment group, " Quorum Venture Group, which had also been set up by the FBI, in support of Cifer. In the letter, Nelson noted that New Roads was "committed to working towards a contract with" Cifer. Nelson also drafted a proposed city ordinance requiring the cleanliness of garbage cans in order to benefit Cifer. He published an article in support of the ordinance in the local paper.
On January 27, 2009, Nelson replied to Johnson's offer of a silent partnership in Cifer by saying: "That sounds good . . . . I'm with that." A few days later, Nelson told Myles that Johnson had "told me some stuff that made me—I'm even more ready to roll than y'all." During this time, Nelson also sought Cifer representatives' financial backing for several business ventures of his own.
In February 2009, Nelson instructed a city employee to send a request to the Louisiana Department of Environmental Quality, seeking support for legislation favorable to Cifer. On March 4, 2009, Johnson offered Nelson $20, 000 in stock in an electronic medical records business in exchange for Nelson's support of Cifer; Nelson agreed. Johnson told Nelson they could delay the decision, but Nelson said that he was "ready right now." In April 2009, Nelson solicited football playoff tickets from FBI undercover agent Mike King while rejecting a similar offer from a representative of another company. Nelson told King that he trusted Cifer.
King offered Nelson $20, 000 in cash, instead of stock, on May 20, 2009. Nelson refused, saying he preferred the stock because it could "bring so much more in the future." But in July, Nelson changed his mind about preferring stock to cash after hearing of an undercover FBI operation involving public officials in New Jersey. King reassured Nelson that he could decline the bribe altogether, saying: "If you're comfortable [helping Cifer] for the right reasons, let's do it for the right reasons." Nelson continued to request the cash. On September 16, 2009, Nelson told King he wanted to be paid in a week. Nelson accepted $5, 000 on September 24, 2009, and another $5, 000 on October 8, 2009. King told Nelson he would get the remaining $10, 000 when Cifer was set up in New Roads.
In October 2009, Nelson used New Roads's "robo call" system to disseminate a pre-recorded message to the town's residents, from him as mayor. The message described the Cifer system and stated that "we are not advocating that the Cifer 5000 alone will cure the H1N1 outbreak, what we are saying is that your risk of contracting this virus or any other will be significantly minimized." The message ended by asking the recipient to press a button on their keypad if he or she is "interested in the Cifer 5000 performing this service in our community for a short period of time free of charge."
In April 2010, Nelson was interviewed by an FBI agent about a report by the City of New Roads that city offices might have been bugged by a disgruntled employee; when asked if he had been bribed, Nelson failed to mention his involvement with Cifer.
Nelson contacted Myles on April 26, 2010, to say that he was running for re-election and he needed Cifer trucks "on the ground" in New Roads, as well as money for campaign funds. Nelson told Myles that Johnson should "empty his pockets" and give Nelson the remaining $10, 000. Nelson later told Myles that if he did not receive the money within a week, he would impose interest "so high where y'all can't make it up." Myles promised to give Nelson the money, but only if Nelson would award Myles a city contract for Cifer's services in the fall. Nelson agreed and also agreed to provide an official letter to the Environmental Protection Agency ("EPA") in support of Cifer's grant request.
Nelson sent a letter on Cifer's behalf to the EPA Administrator, signed and printed on mayoral letterhead, on May 3, 2010. The letter was written mainly by undercover agents but edited by Nelson; it read in part:
Recently, I met with other mayors from Pointe Coupee Parish, Louisiana, and there was an overwhelming interest from the mayors in a technology like the Cifer 5000. A municipal joint venture was discussed wherein any federal financial assistance from the EPA would be shared parish-wide in order to afford many cities the opportunity to implement a regimented sanitation container cleaning system in compliance with the EPA rules and regulations.
At trial, the government introduced evidence that the meeting between Nelson and the other mayors never took place. The letter concluded by requesting the EPA to "tak[e] a leadership role in promoting the development and implementation of standards for the sanitation of waste containers—perhaps under the auspices of federal grants allowing municipalities to invest in technologies such as the Cifer 5000." In return for the letter and a verbal guarantee of a city contract with Cifer in the fall, Myles paid Nelson the remaining $10, 000 in two installments.
Nelson asked Myles to hire him to promote Cifer to other public officials in exchange for ten percent of profits from contracts secured. Nelson said that his "money goal" for the scheme was to "stack a few mill[ion]." Nelson anticipated that Cifer might be bought out and told Myles that he did not want its owners to "walk away with $300 million and leave [Nelson] with some chump change." Nelson also reassured Myles that his wife would not be suspicious about any influx of money because she "had to know what she was getting into before she got into it . . . . She knew my family was political from the gitty-up."
During the course of the investigation, Nelson told Myles that he had cultivated relationships with other companies in addition to Cifer. For example, he told Myles that "he threw in the extra lagniappe"—referring to $444, 000—to PEC, an engineering firm that had been awarded a contract worth several million, as part of a quid pro quo. Myles understood Nelson to mean, "I do something for them, they do something for me." When Myles asked what Nelson would do if another firm offered to do the same work for 30% less than PEC, Nelson responded that the other firm could talk "to the next mayor coming in." Nelson also told an FBI agent that at the same time he was dealing with Cifer, he was "taking care of" a New Roads company called Wildgame Innovations: "I . . . gave them $100, 000 to set up . . . they'll tell you . . . the mayor took care of us . . . But everything they needed to set up, from the Capitol, I've been working with them on legislation."
The undercover investigation of Nelson ended on May 20, 2010, when FBI agents identified themselves to Nelson as he was leaving a meeting with Myles, and Nelson ...