United States v. Jordan

1

United States of America, Plaintiff-Appellee, v. Laura Jordan, Mark Jordan Defendants-Appellants.

No. 22-40519

United States Court of Appeals, Fifth Circuit

August 25, 2023

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:18-CR-87-1

Before HIGGINBOTHAM, GRAVES, and DOUGLAS, Circuit Judges.

PER CURIAM ^[*]

The appellants, a Texas developer and a former mayor of Richardson, Texas, appeal their convictions for bribery and tax fraud, asserting that the bribes were merely gratuities and the district court failed to properly instruct the jury. For the reasons stated herein, we AFFIRM in part and VACATE in part.

FACTS AND PROCEDURAL HISTORY

Laura Maczka (Laura) was elected to the Richardson, Texas city council in 2011. She was elected mayor of Richardson in 2013 after running largely on the platform of not allowing any new apartments near neighborhoods. Laura's term as mayor began on May 20, 2013.

Mark Jordan (Mark) is a commercial real estate developer with ownership interests in various business entities including but not limited to, Sooner National Property Management, JP Realty Partners/JP-Richardson, LLC, and JP-PAL IV MM, LLC. In 2011, JP Partners purchased 43 acres of land and two office towers, known as the Palisades, on the west side of Interstate 75 in Richardson. The property adjoined the Prairie Creek neighborhood, which is where Laura lived with her husband and children. At the time of purchase, the Palisades was zoned for retail use, office use, 121 townhomes and 300 condominiums.

On November 5, 2013, Mark requested a zoning change before the City Planning Commission that would allow the construction of 750 apartment units on the property. On November 19, Mark amended the request to allow for 600 apartments. The commission unanimously recommended that the zoning plan be approved by the city council.

Residents opposed to the rezoning began organizing and started a petition drive. On December 2, 2013, the Prairie Creek homeowners' association issued a statement that it did not support the proposal.

Meanwhile behind the scenes in the months prior to that, Laura and Mark were secretly meeting, exchanging personal emails and calls and working together to obtain the rezoning. Laura and Mark were documented on email chains for the Palisades project as far back as May 9, 2013, the same month that Laura was elected mayor. In October of 2013, Laura and Mark also set up a meeting to discuss the development project with another city councilmember, Steve Mitchell, who had endorsed Laura for her campaign promise not to support the development of apartments in or adjacent to neighborhoods.

On November 21, 2013, prior to the city council's first vote, Laura forwarded Mark an email with the subject "CCHA Update: Palisades Statement to City Planning Commission" from her personal email account and said "FYI . . . And FTR, good thing I had such a fun afternoon yesterday. Because last night the prairie creek mob hit me hard! You were probably enjoying barbecue and chillaxing. I was taking bullets for you!:-)" Later that day, Laura and Mark made plans to meet at one of his buildings and go to the mall.

Around that same time, Mark's wife, Karen, discovered the emails between Laura and Mark, who had a history of infidelity. When Karen confronted Mark, he said nothing was going on and he was only flirting with the mayor to get what he wanted. Laura's husband, Mike, and Mark's former paramour Sarah Norris (Norris), who was also his business partner in Sooner National Property Management, also began to suspect that Mark and Laura were having an affair. When Mike confronted Laura, she denied anything other than a friendship.

On December 9, 2013, the city council held a hearing on the Palisades rezoning. A large number of residents who opposed the rezoning were in attendance. The measure passed by a vote of five, including Laura, in favor and two opposed. But the city also requested that the matter be brought back with a plan for phasing the construction, leaving the vote with no legal effect.

In January of 2014, Norris hired a private investigator to follow Mark. The investigator obtained photos and video of Mark and Laura walking armin-arm out of a restaurant and going to a Holiday Inn Express. After Mike later found the hotel invoice in his car, Laura admitted she was having an affair but claimed it was with someone other than Mark. In mid-January, Laura told her husband she was going to Salt Lake City, Utah for a mayor's convention. She was actually meeting Mark at a $3400 per night ski resort. About ten days later, Mark signed a contract for the option to purchase an additional 20 acres of Palisades land if it was rezoned to allow for additional apartments. Mark then asked the city to approve a rezoning plan to allow for 1,400 apartments on the property. On January 27, 2014, the city council held a second vote on the rezoning and approved it by the same vote of five to two, with Laura again voting in support.

Around the middle of April, Laura took a city business trip to San Jose, California. Once the official business concluded, Laura stayed behind to meet up with Mark, who was also in California on business, for a few nights at luxury hotels at his expense. After Laura returned home from California, Mike found additional evidence of the affair and Laura said she wanted a divorce.

Meanwhile, Norris discovered numerous purchases by Mark on the company credit card for restaurants, resorts, limousines, a burner phone, and a charge for him upgrading Laura to first class for their return trip from California. Mark told Norris he was just using Laura to get approval for his rezoning plan. Mark later admitted to Karen that he and Laura had a relationship. But he insisted that they had only kissed, claiming he was not physically attracted to Laura.

The city council scheduled the third vote on Mark's plan regarding the proposal to add 1,400 new apartments. Numerous residents showed up to voice opposition to the proposal, and the number of apartments was reduced to 1,090. But on June 9, 2014 the rezoning passed again with Laura's support yielding another five to two vote.

In August 2014, Mark sent a letter to the city on behalf of his partnership seeking reimbursement for the construction of public infrastructure for the Palisades. Mark estimated that the value of the Palisades would be $686,300,000 by 2024. Shortly thereafter, Laura opened a bank account in her own name and with herself as sole signatory. A series of transactions followed wherein Mark would withdraw money and Laura would deposit money. As one example, on September 9, Mark withdrew $1,000 from his bank account and Laura deposited $300 in her account. Two days later, Laura deposited $1,000 in her account while on a birthday trip with friends to Florida. Laura also abruptly left her friends to go stay with Mark in Rosemary Beach, Florida at his expense.

Shortly thereafter, on September 22, 2014, the city council voted unanimously to authorize negotiations with Mark and his business partners to reimburse them for various construction and infrastructure expenses connected to the Palisades. Over the next several months, Mark worked with city staff, including Laura, to reach an agreement. During that time, Mark also continued to provide financial benefits to Laura, including multiple cash payments, a $40,000 check, home renovations after Laura's husband moved out of the family home, various trips, luxury hotel stays, etc. Mark had the $24,030.02 in home renovations done by one of his contractors, and had it billed as "carpet stock" for one of his own buildings, MacArthur Plaza. He also asked the contractor to "keep it on the down low." When Karen confronted Mark about why he was doing the remodeling work on Laura's home, he replied: "Because, Karen, we owe her. We owe her a lot. She's made us a lot of money."

Laura and Mike divorced in January 2015. Mark also filed for divorce from Karen on January 15, 2015. Laura filed to run for a second term as mayor the following month. Around that same time, Mark hired Laura as a leasing agent at Sooner National Property Management for $150,000 per year with a signing bonus of $15,000. Laura had no real estate experience and was not a licensed agent. The person who had previously held the position had left because the position only paid $70,000 per year. The media attention generated by Laura's involvement with the developer behind the Palisades resulted in an ethics investigation by the city. However, neither Laura nor Mark disclosed the sexual relationship, cash payments, luxury hotel stays, various trips, home renovations or the $40,000 check. Thus, the investigator found no wrongdoing, and the city entered into an agreement to reimburse Mark some $47 million for construction and infrastructure work. Laura voted in favor of the agreement to pay Mark the $47 million on September 22, 2014. In fact, in December of 2014, Laura was still denying to members of the city council that she and Mark were having an affair. Laura claimed that her parents paid for her house to be remodeled.

Around April or May of 2015, the FBI received a tip about the transfer of money, trips and other items of value between Laura and Mark and began an investigation. On May 18, 2015, Laura announced that she was declining another term as mayor for the 2015-17 term.

In July of 2015, Mark had lunch with Norris, who no longer worked with him. She was wearing a wire for the FBI. Mark said he had hired a retired federal judge as his criminal defense attorney. He also said that the attorney had advised him to get engaged to Laura, but Mark denied to Norris that he would ever marry Laura. After...