Appeals Court Cracks the Whip in Bribery Case

     (CN) - Probation is too lenient a sentence for the Alabama businessman who bribed an education official to earn $5 million in state contracts, the 11th Circuit ruled.
     Access Group Software LLC sold education software to more than 25 two-year colleges and technical schools in Alabama. The company's owner, James Winston Hayes, spent more than $600,000 between 2002 and 2006 on bribes to then-Chancellor of the Alabama Department of Postsecondary Education Roy Johnson, as well as Johnson's friends and family, according to the decision published Tuesday.
     These payments, which ensured that Access "would continue to receive government contracts," went toward home-construction costs and fictitious legal services, among other things, according to the Tuesday ruling from a divided three-judge appellate panel.
     "The bribes proved successful," Judge Adalberto Jordan wrote for the majority. "From 2002 to 2006, ACCESS received more than $14 million in gross income from the ADPE, from which it realized a profit of approximately $5 million."
     Hayes eventually turned state's evidence and pleaded guilty in 2007 to a bribery charge and money laundering.
     He faced between 135 to 168 months' imprisonment under sentencing guidelines, but the government argued for a downward departure that would put Hayes behind bars for five years months.
     Citing its authority to impose a non-guidelines sentence under the 2005 U.S. Supreme Court case United States v. Booker, however, the District Court sentenced Hayes to three years' probation with up to a year of home confinement, in addition to forfeiture of $5 million and $628,000 in restitution.
     The Atlanta, Ga.-based federal appeals court vacated that sentence, 2-1, Tuesday.
     "As corruption cases go, this was bribery writ large, and on this record the district court's significant variance down to probation cannot stand," Jordan wrote.
     The 23-page lead opinion notes that "Hayes did not just give a one-time gratuity to a local zoning inspector to expedite a building permit for a pool."
     "He paid over half a million dollars in bribes, over a four-year period, to a high-ranking Alabama official so that his company could continue to receive a lucrative government contracts - efforts which were rewarded by a corporate bottom line that got fatter by $5 million - and for that he received probation," Jordan wrote.
     Judge Gerald Tjoflat said in a 41-page dissent emphasizes that the government invited a lower sentence that varies from guidelines, thus triggering the invited-error doctrine and stopping the 11th Circuit from vacating and remanding in light of procedural error.
     "Although Hayes' sentence is the product of procedural error that is plain on its face, we are not at liberty to correct the error," Tjoflat wrote. "The doctrine of invited error 'stems from the common sense view that where a party invites the trial court to commit the error, he cannot later cry fowl on appeal.'"