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United States v. Lupton

United States Court of Appeals for the Seventh Circuit

January 13, 2010, Argued; September 1, 2010, Decided

No. 09-2710

Opinion

 [*793]  TINDER, Circuit Judge. Larry Lupton was a real estate broker assigned to facilitate the sale and leaseback of a building owned by the State of Wisconsin. In the course of soliciting bids for the sale, Lupton also solicited kickback payments from the broker for one of the competing prospective buyers--and claimed to have made similar overtures to others. In return for the payments, Lupton promised to crunch the numbers so that certain proposals came out on top. The broker from whom Lupton sought a kickback reported the incident to the authorities and was outfitted with equipment to record his future dealings with Lupton. After the informant recorded several incriminating conversations with Lupton, FBI agents twice interviewed Lupton, who categorically denied any involvement in illicit  [**2] activity. Not-withstanding Lupton's denials, a grand jury indicted him on four charges: corrupt solicitation, wire fraud, and two counts of making false statements to government officials. After a bench trial from which his proffered expert testimony was excluded, Lupton was found guilty of all four counts. He appeals both the exclusion of his expert's testimony and the validity of his convictions. We affirm in all respects.

I. Background

When the State of Wisconsin decided to sell and release one of its buildings in early 2007, it entered into an exclusive listing agreement with real estate firm UGL Equis ("Equis"), with which it had a master contract dating back to 2004. Under the terms of the listing agreement, Wisconsin was to pay Equis a 4.3% commission on the expected $ 20-$ 30 million sale price. Equis designated one of its independent-contractor vice presidents, Larry Lupton, as one of two point persons for the sale. Lupton was tasked with soliciting proposals from parties interested in the deal, evaluating the bids, and recommending the top few to the State, who would then decide which proposal to accept. Under his contract with Equis,  [*794]  Lupton would be paid a negotiable percentage--usually  [**3] about 50%--of Equis's commission if he closed the sale.

In February 2007, Lupton sent out a memorandum soliciting proposals from prospective buyers and received a number of responses. Using an evaluation matrix that compared different features of the bids, Lupton identified some of the top proposals. In March, he contacted the bidders whose proposals rose to the top and asked them to submit final letters of intent ("LOIs") containing more detailed bid information. To assist the prospective buyers with the formulation of their LOIs, Lupton provided them with a sample LOI. The sample LOI contained a confidentiality clause, which most of the contenders imported into their final LOIs verbatim.

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620 F.3d 790 *; 2010 U.S. App. LEXIS 18238 **

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LARRY LUPTON, Defendant-Appellant.

Subsequent History: US Supreme Court certiorari denied by Lupton v. United States, 2011 U.S. LEXIS 1162 (U.S., Feb. 22, 2011)

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07-CR-219--Lynn Adelman, Judge.

United States v. Lupton, 2008 U.S. Dist. LEXIS 41989 (E.D. Wis., May 28, 2008)United States v. Lupton, 2009 U.S. Dist. LEXIS 20785 (E.D. Wis., Mar. 16, 2009)

CORE TERMS

bid, district court, broker, split, prospective buyer, wire fraud, soliciting, conversation, honest, terms, contends, kickback, details, convictions, interviewed, proposals, argues, top, expert testimony, recommendation, factfinder, bidders, counts, buyer, false statement, reliable, parties, knowingly and willfully, independent contractor, potential buyer

Evidence, Admissibility, Expert Witnesses, Daubert Standard, Expert Witnesses, Procedural Matters, Rulings on Evidence, Testimony, Criminal Proceedings, Criminal Law & Procedure, Juries & Jurors, Province of Court & Jury, Legal Issues, General Overview, Bribery, Public Officials, Elements, Standards of Review, Deferential Review, Credibility & Demeanor Determinations, Substantial Evidence, Sufficiency of Evidence, Factual Issues, Appeals, Briefs, Reviewability, Preservation for Review, Administrative Law, Freedom of Information, Methods of Disclosure, Real Property Law, Brokers, Discipline, Licensing & Regulation, Public Inspection, Record Requests, Fraud, Wire Fraud, Fraud Against the Government, False Statements, Defendant's Rights, Right to Remain Silent, Self-Incrimination Privilege