UNITED STATES COURT OF APPEAL
FIFTH CIRCUIT
_______________
No. 93-8679
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL A. TOMBLIN,
Defendant-Appellant.
__________________________________________________
Appeal from the United States District Court
for the Western District of Texas
__________________________________________________
(February 24, 1995)
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion December 30, 5th Cir., 1994, _____F.3d_____)
Before REYNALDO G. GARZA, WIENER, and EMILIO M. GARZA, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
Tomblin's Petition for Rehearing by Panel is DENIED; and no
member of this panel nor judge in active service on the Court
having requested that the Court be polled on rehearing en banc, the
Suggestion for Rehearing En Banc is also DENIED. However, we
withdraw our prior opinion, United States v. Tomblin, 42 F.3d 263
(5th Cir. 1994), and substitute the following:
Darrell A. Tomblin was convicted of bribery (Count 22),
conspiracy to commit bribery (Count 1), using interstate travel to
facilitate bribery (Counts 2, 4, 6-8, 10-21), aiding and abetting
bribery (Counts 5, 9), and extortion (Count 3). He appeals on
various grounds. We affirm in part and vacate in part.
I
Tomblin was the coordinating force for a group attempting to
develop business opportunities in Grenada and acquire controlling
interests in approximately ten failed or failing savings and loan
institutions ("S&Ls"). Tomblin believed that United States Senator
Jacob "Chic" Hecht of Nevada, whom he had known for several years,
would be helpful and interested in these projects due to his
position as a member of the Senate Banking and Intelligence
Committees.
Because Tomblin lacked the financial assets to forward these
plans, he involved two Texas bankers, Leo Ladoucer and Danny
Gonzalez, as potential financiers for the ventures. To secure
their cooperation in his plans, Tomblin promised Ladoucer and
Gonzalez that he would exercise his political influence with
Senator Hecht's office to gain assistance in bypassing the regular
channels involved in obtaining the approval of the Federal Home
Loan Bank Board ("FHLBB") for their takeover of Suburban Savings
Association ("Suburban").
Tomblin, Ladoucer, and Gonzalez attempted to accomplish their
goals, however, by promising Glen Mauldin, Senator Hecht's
administrative assistant and campaign treasurer, a $50,000 campaign
2
contribution, paying Mauldin's expenses for a trip to Texas, and
promising him a 10% stake in the Grenadan and S&L ventures.
Unbeknownst to Tomblin, Ladoucer and Gonzalez served as government
informants and made several recordings of conversations relating to
these events.
The involvements of the parties began when Tomblin contacted
Mauldin to determine what assistance the Senator's office could
provide for the Grenadan business ventures. Mauldin introduced
Tomblin to Vincent Lachelli, a Washington, D.C. lobbyist with
Grenadan connections,1 and at a subsequent meeting, Tomblin offered
Mauldin ten percent of the stock in the corporation being set up
for the Grenadan venture.2
Shortly thereafter, George Chall, who was acquainted with
Tomblin, introduced Ladoucer to Tomblin. Ladoucer and Gonzalez
were seeking investors to buy notes from Suburban in order to
improve Suburban's liquidity. Tomblin did not buy any notes;
instead, he suggested that Ladoucer and Gonzalez should obtain a
waiver from the FHLBB so that they could make more loans.3 Tomblin
offered to use his influence with Senator Hecht to facilitate a
meeting between Ladoucer, Gonzalez, and Danny Wall, chairman of the
1
Lachelli exercised his connections to obtain letters from U.S.
officials to the Prime Minister of Grenada and meetings with Grenadan officials
when the group eventually went there.
2
At trial, Mauldin testified that Tomblin said, "he was reserving ten
percent of the stock for someone they could work with, and then he indicated to
me at that time that it was `for you and Chic.'" Lachelli also testified that
ten percent had been set aside for Mauldin.
3
This waiver is commonly referred to as "forbearance."
3
FHLBB.4
Ladoucer and Gonzalez also desired access to Chairman Wall
because of the manner in which they had acquired a substantial
interest in Suburban.5 The Texas Savings and Loan Department had
notified Ladoucer and Gonzalez that they could not exercise the
control they had acquired until they received approval for the
change of control from the FHLBB. Because their acquisition of
Suburban stock had been illegal, their application for control
would not survive a regular review by the FHLBB. Absent approval
by the FHLBB, their one-million-dollar investment in Suburban was
substantially at risk. Consequently, Ladoucer and Gonzalez wanted
the meeting with Chairman Wall to see if they could bypass the
usual review.
Tomblin promised to help Ladoucer and Gonzalez get a meeting
with Chairman Wall, subject to several conditions. First, Ladoucer
and Gonzalez had either to pay Tomblin a $100,000 fee for his
assistance or make him a $250,000 loan. Tomblin also told Ladoucer
and Gonzales that they would have to pay Lachelli a $25,000
lobbying fee and contribute $50,000 to Hecht's campaign fund.
Tomblin had Mauldin fly to San Antonio to discuss the planned
4
The Senate Banking Committee, of which Hecht was a prominent member,
oversees the FHLBB.
5
Ladoucer and Gonzalez had used fraudulent real estate transactions
to acquire the stock. As a result of these transactions, Ladoucer was indicted
for bank fraud, and eventually pled guilty to several charges; he also agreed to
cooperate with the government in its investigation of the conspiracy at issue in
this case. Gonzalez likewise was indicted, pled guilty to two counts of bank
fraud, and agreed to cooperate in the investigation of this case.
4
meeting with Chairman Wall and the arrangements for the campaign
contribution.
Ladoucer and Gonzalez complied with most of Tomblin's
requests. They paid Mauldin's expenses of $725.15 for the trip,
made the $250,000 loan to Tomblin through two Texas shell
corporations, and paid Lachelli the $25,000 lobbying fee. In
exchange, Tomblin arranged the meeting with Chairman Wall.
At the meeting with Chairman Wall and his assistant, Ray
Meyer, Gonzalez discussed the change of control and their hope that
the FHLBB would grant forbearance to Suburban. Mauldin also
attended the meeting; Meyer testified at trial that Mauldin's
attendance was unusual and an indication of Hecht's interest.6
None of the planned ventures ever came to fruition. The FHLBB
questioned the application for change of control, and Meyer's
cooperation was at best lukewarm. Ladoucer also never made the
$50,000 campaign contribution. Although the group continued to
pursue the Grenadan venture, indictments against the conspirators
short-circuited their plans.7
Tomblin was charged with twenty-two counts of conspiracy to
6
According to Meyer, "it was a rare situation when you had one of
their assistants come over."
7
Mauldin eventually pled guilty to conspiracy to commit bribery. He
admitted that he had accepted the $725.15 as a bribe, and that he had agreed to
accept ten percent in the ventures in return for his assistance with Chairman
Wall and the FHLBB. Lachelli also pled guilty to conspiracy.
5
commit bribery,8 bribery,9 using interstate facilities to commit
8
Section 371 of Title 18 makes it unlawful when "two or more persons
conspire either to commit any offense against the United States, or to defraud
the United States, . . . and one or more of such persons do[es] any act to effect
the object of the conspiracy." 18 U.S.C. § 371 (1988).
9
Section 201 of Title 18 makes it unlawful to:
(b) (1) directly or indirectly, corruptly give[], offer[] or
promise[] anything of value to any public official or person who has
been selected to be a public official, or offer[] or promise[] any
public official or any person who has been selected to be a public
official to give anything of value to any other person or entity,
with intent))
(A) to influence any official act; or
(B) to influence such public official or person
who has been selected to be a public
official to commit or aid in committing, or
to collude in, or allow, any fraud, or make
opportunity for the commission of any
fraud, on the United States; or
(C) to induce such public official or such
person who has been selected to be a public
official to do or omit to do any act in
violation of the lawful duty of such
official or person, or
(2) . . . [if a public official or a person selected to be a
public official,] directly or indirectly, corruptly ask[], demand[],
exact[], solicit[], seek[], accept[], receive[], or agree[] to
receive anything of value for himself or for any other person or
entity, in return for:
(A) being influenced in his performance of any
official act; or
(B) being influenced to commit or aid in
committing, or to collude in, or allow, any
fraud, or make opportunity for the
commission of any fraud, on the United
States; or
(C) being induced to do or omit to do any act
in violation of the official duty of such
official or person.
(c)(1) otherwise than as provided by law for the proper discharge of
official duty))
(A) directly or indirectly give[], offer[], or
promise[] anything of value to a public
official, former public official, or person
selected to be a public official, for or
because of any official act performed or to
be performed by such public official,
former public official, or person selected
to be a public official; or
(B) being a public official, former public
official, or person selected to be a public
official, otherwise than as provided by law
for the proper discharge of official duty,
directly or indirectly demand[], seek[],
receive[], accept[], or agree[] to receive
6
bribery,10 aiding and abetting bribery,11 and extortion.12 After a
two-week trial that included thirty-five recordings of
conversations in which Tomblin had participated and testimony from
multiple witnesses including Tomblin himself, Tomblin was convicted
on all counts. The district court sentenced him to $5,000
restitution, fifty-one months' imprisonment, and three years of
supervised release. Tomblin appeals his convictions and sentence,
arguing that 1) the district court should have suppressed the
or accept anything of value personally for
or because of any official act performed or
to be performed by such official or person.
18 U.S.C. § 201 (1988).
10
Section 1952 of Title 18 makes it unlawful to:
(a) travel[] in interstate or foreign commerce or use[] the
mail or any facility in interstate or foreign commerce,
with intent to))
. . .
(3) otherwise promote, manage, establish, carry
on, or facilitate the promotion,
management, establishment, or carrying on,
of any unlawful activity,
and thereafter perform[] or attempt to perform[] any of the acts
specified in subparagraph . . . (3).
18 U.S.C. § 1952 (1988 & Supp. V 1993).
11
Section 2 of Title 18 makes it unlawful to "commit[] an offense
against the United States or aid[], abet[], counsel[], command[], induce[] or
procure[] its commission." 18 U.S.C. § 2 (1988).
12
Section 1951 of Title 18 makes it unlawful to:
(a) . . . in any way or degree obstruct[], delay[], or
affect[] commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempt[] or conspire[] so to do, or commit[] or
threaten[] physical violence to any person or property
in furtherance of a plan or purpose to do anything in
violation of this section.
(b) As used in this section))
(2) The term "extortion" means the obtaining of
property from another, with his consent,
induced by wrongful use of actual or
threatened force, violence, or fear, or
under color of official right.
18 U.S.C. § 1951 (1988).
7
recordings; 2) the district court should not have refused his
requested jury instruction on intent to bribe and the evidence was
insufficient for the jury to find that he intended to bribe
Mauldin; 3) his extortion conviction should be reversed because he
was not a public official, the district court improperly refused
his requested jury instructions, and the evidence was insufficient
to convict him; 4) prosecutorial misconduct prejudiced him; and 5)
the district court improperly enhanced his sentence based on
Mauldin's official position.
II
A
Tomblin argues that the district court should have suppressed
certain recorded conversations because 1) the FBI investigators
omitted material exculpatory information from the affidavit they
submitted to obtain wiretap authorization, 2) the government failed
to maintain proper custody of the tapes,13 and 3) the "consensual"
recordings were involuntary.
1
Tomblin first asserts that, because the FBI omitted
information, the affidavit submitted to obtain authorization to
monitor certain phone conversations was deficient. We review the
magistrate judge's decision for clear error. United States v.
13
Tomblin makes this assertion, but provides no legal argument in his
brief that indicates the basis for his contention. Consequently, we do not
address it. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (holding
that issues not argued are abandoned).
8
Williams, 737 F.2d 594, 602 (7th Cir. 1984), cert. denied, 470 U.S.
1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985). Although we
presume "validity with respect to the affidavit supporting the
search warrant," Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.
Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978), "[d]eference to the
magistrate, . . . is not boundless. . . . [T]he deference accorded
to a magistrate's finding of probable cause does not preclude
inquiry into the knowing or reckless falsity of the affidavit on
which that determination was based." United States v. Leon, 468
U.S. 897, 914, 104 S. Ct. 3405, 3416, 82 L. Ed. 2d 677 (1984); see
also Williams, 737 F.2d at 602 (defining reckless disregard for
truth as when reasons to doubt information's veracity are obvious).
[T]he challenger's attack must be more than conclusory
and must be supported by more than a mere desire to
cross-examine. There must be allegations of deliberate
falsehood or of reckless disregard for the truth, and
those allegations must be accompanied by an offer of
proof. They should point out specifically the portion of
the warrant affidavit that is claimed to be false; and
they should be accompanied by a statement of supporting
reasons. Affidavits or sworn or otherwise reliable
statements or witnesses should be furnished, or their
absence satisfactorily explained. Allegations of
negligence or innocent mistake are insufficient.
Franks, 438 U.S. at 170, 98 S. Ct. at 2684. If the defendant
successfully makes this showing, and if the defect in the affidavit
is material, the evidence obtained pursuant to the faulty affidavit
is inadmissible. Id. at 155-56, 98 S. Ct. at 2676; see also United
States v. Stanert, 762 F.2d 775, 780 (9th Cir.) (discussing two
Franks elements: 1) that intentional or reckless falsity existed,
and 2) that absent invalid information, the remaining affidavit is
9
insufficient for probable cause).
Tomblin contends that the investigators omitted information
from their affidavits intentionally or with reckless disregard.
Omissions or misrepresentations can constitute improper government
behavior. Stanert, 762 F.2d at 781 (requiring "a substantial
showing that the affiant intentionally or recklessly omitted facts
required to prevent technically true statements in the affidavit
from being misleading"). Moreover, recklessness can in some
circumstances be inferred directly from the omission itself.
United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980)
(allowing an inference of recklessness from proof of the omission).
Unless those omissions are material, however, the affidavit stands.
United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)
("Omitted information that is potentially relevant but not
dispositive is not enough to warrant a Franks hearing."); Williams,
737 F.2d at 604 (omitted facts must be material). "Unless the
defendant makes a strong preliminary showing that the affiant
excluded critical information from the affidavit with the intent to
mislead the magistrate, the Fourth Amendment provides no basis for
a subsequent attack on the affidavit's integrity." Colkley, 899
F.2d at 303.
Tomblin makes several assertions that the FBI agents omitted
information from their affidavits, including: 1) that they did not
reveal a deal for leniency that the agents made with Ladoucer; 2)
that they did not reveal that Ladoucer was violating the law by
10
meeting with Chairman Wall; 3) that they did not explain that some
of the targets' admissions were made when the targets were
intoxicated; and 4) that they failed to reveal that the targets had
refused to act unlawfully on several occasions.
The government contends that the evidence contradicts
Tomblin's first two assertions. The record reflects that the
government did reveal that Ladoucer was expecting a deal in return
for his cooperation. The record also reveals that Gonzales
testified about the attendees of the meeting with Chairman Wall,
and that Ladoucer was not one of them. Therefore, Tomblin's first
two contentions lack merit.
Even if we infer recklessness from the omitted exculpatory
information as asserted in Tomblin's remaining contentions, Martin,
615 F.2d at 329, we also determine whether that information is
material, Colkley, 899 F.2d at 301; Williams, 737 F.2d at 604. The
targets may, as Tomblin argues, have refused to break the law as
alleged, and they may have been intoxicated as alleged. Neither
supports a finding of deliberate falsehood or reckless disregard
for truth because the balance of the information submitted in the
affidavits is more than sufficient on its own to establish probable
cause. Therefore, the absence of exculpatory circumstances for a
few of the conversations does not make the remaining information
misleading, and the district court's refusal to suppress the tapes
does not constitute clear error.
2
11
Tomblin also asserts that the "consensual" tape recordings
were not voluntarily made. "Voluntariness is a question to be
determined from the totality of the circumstances, . . . and we
will not disturb the trial court's determination on appeal unless
it is clearly erroneous." United States v. Smith, 649 F.2d 305,
309 (5th Cir. Unit B 1981) (citations omitted), cert. denied, 460
U.S. 1068, 103 S. Ct. 1521, 75 L. Ed. 2d 945 (1983). The
government has the burden of proving consent. United States v.
Kolodziej, 706 F.2d 590, 593 (5th Cir. 1983). It usually meets
this burden by demonstrating that "the informant placed the
telephone call knowing that it would be monitored." Id. at 593.
"When, however, there is an allegation of coercion, the government
must show that there has been no undue pressure, threats, or
improper inducements." Id.
Tomblin argues that Ladoucer and Gonzales agreed to the
recordings only because they hoped for improved treatment in the
prosecutions against them. A hope for leniency, however, does not
vitiate consent. United States v. Jones, 839 F.2d 1041, 1050 (5th
Cir.), cert. denied, 486 U.S. 1024, 108 S. Ct. 1999, 100 L. Ed. 2d
230 (1988); Kolodziej, 706 F.2d at 595; United States v. Llinas,
603 F.2d 506, 508 (5th Cir. 1979), cert. denied, 444 U.S. 1079, 100
S. Ct. 1030, 62 L. Ed. 2d 762 (1980); United States v. Juarez, 573
F.2d 267, 278 (5th Cir.), cert. denied, 439 U.S. 915, 99 S. Ct.
12
289, 58 L. Ed. 2d 262 (1978).14 Accordingly, Tomblin's challenge
fails.
B
Next, Tomblin raises several challenges to his convictions for
bribery. He contends that the district court erred in refusing to
give his requested jury instruction regarding intent. He also
asserts that the evidence was insufficient to find that he intended
to bribe Mauldin.
1
Tomblin challenges the district court's refusal to grant his
requested jury instruction regarding his intent to bribe Mauldin.15
14
Tomblin cites only to outdated caselaw supporting his contention that
offering leniency vitiates consent. See, e.g., Weiss v. United States, 308 U.S.
321, 330, 60 S. Ct. 269, 272-73, 84 L. Ed 298 (1939) (holding that authorization
of intercepts could not be implied from "enforced agreement").
15
Tomblin requested that the jury be instructed that:
. . .
The solicitation and offer of campaign contributions and the
payment of expenses related to campaigns are necessary and
permissible forms of political activity and expression. Such
conduct is not only well within the law, but unavoidable so long as
election campaigns are financed by private contributions and
expenditures. Thus, the payment of a campaign contribution, the
promise of one, or the reimbursement of travel costs related to a
campaign do not, in and of themselves, constitute bribery.
In order for such to constitute bribery, you must find beyond
a reasonable doubt that Defendant TOMBLIN offered or solicited the
payment of the $725.00 to GLEN MAULDIN and the $50,000 to the Hecht
Re-Election Committee intentionally for an unlawful purpose
intending that its acceptance be conditioned upon GLEN MAULDIN
performing or not performing a defined, explicit official act.
This requires more than some generalized hope or expectation
of ultimate benefit. the money must have been offered and paid with
the intent and design to influence official action in exchange for
the donation))the payment serving as a condition for a specified and
bargained for action . . . .
Similarly, TOMBLIN contends that any offer or intent to offer
a percentage interest in business ventures was made out of loyalty,
friendship and the qualifications of MAULDIN and HECHT and not with
the intent to influence an official act as alleged . . . . The
offer, when coupled with such intent, if you find that he had such
intent or if you have a reasonable doubt that he so intended, is not
13
Specifically, he argues that the jury instruction actually given
did not require the jury to find an explicit quid pro quo, which is
a predicate to the specific intent required. We review jury
instructions for abuse of discretion. United States v. Pennington,
20 F.3d 593, 600 (5th Cir. 1994). "The refusal to give a jury
instruction constitutes error only if the instruction (1) was
substantially correct, (2) was not substantially covered in the
charge delivered to the jury, and (3) concerned an important issue
so that the failure to give it seriously impaired the defendant's
ability to present a given defense." Id.; accord United States v.
Aggarwal, 17 F.3d 737, 745 (5th Cir. 1994); United States v.
Shabazz, 993 F.2d 431, 440 (5th Cir. 1993).
Under the bribery statutes, the government must prove a quid
pro quo, that is, that the official took money in return for an
exercise of his official power. McCormick v. United States, 500
U.S. 257, ___, 111 S. Ct. 1807, 1815-16, 114 L. Ed. 2d 307 (1991).
In order to convict a briber, the government must prove that the
accused intended to bribe the official. Intending to make a
campaign contribution does not constitute bribery, even though many
contributors hope that the official will act favorably because of
their contributions. See United States v. Allen, 10 F.3d 405, 411
(7th Cir. 1993) ("[A]ccepting a campaign contribution does not
equal taking a bribe unless the payment is made in exchange for an
made corruptly and does not constitute bribery.
It must be remembered that TOMBLIN is not required to prove
his innocent motivation. Rather, the prosecution must prove beyond
a reasonable doubt that TOMBLIN did not act innocently . . . .
14
explicit promise to perform or not perform an official act. Vague
expectations of some future benefit should not be sufficient to
make a payment a bribe."); United States v. Biaggi, 909 F.2d 662,
695 (2d Cir. 1990) ("There is a line between money contributed
lawfully because of a candidate's positions on issues and money
contributed unlawfully as part of an arrangement to secure or
reward official action, though its location is not always clear."),
cert. denied, 499 U.S. 904, 111 S. Ct. 1102, 113 L. Ed. 2d 213
(1991). Accordingly, a jury instruction must adequately
distinguish between the lawful intent associated with making a
campaign contribution and the unlawful intent associated with
bribery. See United States v. Taylor, 993 F.2d 382, 385 (4th Cir.)
("Any payment to a public official, whether it be a legitimate
campaign contribution or a bribe, is made because of the public
office he holds. Evans makes clear that the public official must
obtain `a payment to which he was not entitled, knowing that the
payment was made in return for official acts.'" (quoting Evans v.
United States, ___ U.S. ___, ___, 112 S. Ct. 1881, 1889, 119 L. Ed.
2d 57 (1992)) (emphasis added)), cert. denied, ___ U.S. ___, 114 S.
Ct. 249, 126 L. Ed. 2d 202 (1993). The instructions requested by
Tomblin adequately state the law. Therefore, the question is
whether the jury instruction given by the district court
"substantially covered" the distinction between the intent to make
a legitimate campaign contribution and the intent to bribe. See
Pennington, 20 F.3d at 600.
15
The district court instructed the jury on the issue of
bribery by using Fifth Circuit Pattern Jury Instruction16 Nos. 2.13
and 2.12.17 Tomblin argues that the definition of "corruptly" does
16
Although the fact that the court used a pattern instruction is not
conclusive, we encourage their use. United States v. Williams, 20 F.3d 125, 132
(5th Cir. 1994) ("[T]he Pattern Jury Instructions provide a useful guide for the
district courts, [but] we have never required the trial courts in this Circuit
to use any particular language in a jury charge."), cert. denied, 63 U.S.L.W.
3264 (U.S. Oct. 3, 1994) (No. 94-5238); United States v. Turner, 960 F.2d 461,
464 (5th Cir. 1992) (affirming refusal to give instruction where judge instructed
with Fifth Circuit Pattern Jury Instruction).
17
The actual charge stated as follows:
Title 18, United States Code, Section 201(b)(1), makes it a
crime for anyone to bribe a public official. In this case, the
Defendant is charged with committing bribery in two different ways.
In counts five and nine, the Defendant is charged with aiding
and abetting Glen Mauldin in corruptly demanding, seeking, and
receiving something of value in order to be influenced in the
performance of official acts.
For you to find the Defendant guilty of bribery in counts five
and nine, you must be convinced beyond a reasonable doubt:
First: That Glen Mauldin demanded, sought, or received
something of value as described in the indictment.
Second: That Glen Mauldin was, at that time, a public
official of the United States or was acting on behalf of the United
States.
Third: That Glen Mauldin demanded, sought or received the
item of value corruptly in return for being influenced in the
performance of an official act; and
Fourth: That the Defendant aided and abetted Glen Mauldin in
doing so.
. . .
In count twenty-two the Defendant is charged with bribing Glen
Mauldin and with aiding and abetting the bribery. For you to find
the Defendant guilty of bribery in count twenty-two, you must be
convinced that the Government has proved each of the following
beyond a reasonable doubt:
First: That the Defendant directly or indirectly gave,
offered, or promised something of value to Glen Mauldin; and
Second: That the Defendant did so corruptly with intent to
influence an official act by Glen Mauldin.
. . .
An act is "corruptly" done if it is done intentionally with an
unlawful purpose. Therefore, in evaluating whether the Government
has proved beyond a reasonable doubt that the Defendant bribed or
intended to bribe a public official, you must focus specifically on
the Defendant's mental state, regardless of the mental state of the
public official. Merely because the public official accepts a thing
of value with corrupt intent does not mean that the Defendant made
the offer with corrupt intent. Indeed, the public official may
accept an offer as a bribe, while the Defendant may not possess the
same corrupt intent in offering something of value. Again, your
focus must be on the Defendant's state of mind.
16
not require the jury to find a quid pro quo. We view a jury
instruction, however, in its entirety. United States v. Duvall,
846 F.2d 966, 972 (5th Cir. 1988) (viewing bribery instructions "as
a whole"); United States v. Dozier, 672 F.2d 531, 542 (5th Cir.)
(reviewing not only specific element of bribery instruction, but
also other portions of charge that added clarity to challenged
element), cert. denied, 459 U.S. 943, 103 S. Ct. 256, 74 L. Ed. 2d
200 (1982). By requiring the jury to find that Glen Mauldin
accepted an item of value in return for official acts in counts
five and nine, and that Tomblin promised something of value to
Mauldin "with intent to influence an official act", the
instructions explain the reciprocity element of the quid pro quo.
These instructions also distinguish between the levels of intent
about which Tomblin is concerned, because they required the jury to
find that, in promising something of value to Mauldin and in aiding
and abetting Mauldin's acceptance of an item of value, Tomblin had
acted corruptly, that is, with unlawful purpose. Moreover, the
instruction clearly required the jury to focus on Tomblin's intent.
Tomblin's requested instruction focused pointedly on the specific
facts of this case as they related to his defense that he had not
intended to bribe Mauldin, but the court's actual instruction
allowed Tomblin to present that information and defense to the
jury, and we do not require that the instructions do any more. See
Duvall, 846 F.2d at 972 (affirming instructions that "provided an
adequate basis for [defendants] to present to the jury a [specific
17
theory of] defense"); Dozier, 672 F.2d at 542 (approving
instructions that "fairly presented the issues to the jury").18
Consequently, the district court did not abuse its discretion when
it refused to give the instruction Tomblin requested.
2
Assuming the instruction was proper, Tomblin also argues that
the evidence was insufficient for the jury to convict him of
bribery. See Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct.
2781, 2788-89, 61 L. Ed. 2d 560 (1979) ("[T]he critical inquiry on
review of sufficiency of the evidence to support a criminal
conviction must be not simply to determine whether the jury was
properly instructed, but to determine whether the record evidence
could reasonably support a finding of guilt beyond a reasonable
doubt."). To determine sufficiency in a criminal case:
The evidence is reviewed in the light most favorable to
the government, drawing all reasonable inferences in
support of the verdict. But if the evidence viewed in
the light most favorable to the prosecution gives equal
or nearly equal circumstantial support to a theory of
guilt and a theory of innocence, the conviction should be
reversed. It is not necessary that the evidence exclude
every reasonable hypothesis of innocence; the jury is
free to choose among reasonable constructions of the
evidence. The only question is whether a rational jury
could have found each element of the offense beyond a
reasonable doubt.
United States v. Pennington, 20 F.3d 593, 597 (5th Cir. 1994)
(citations omitted); see also United States v. Stephens, 964 F.2d
18
See also Turner, 960 F.2d at 464 (denying defendant's requested
instruction because it was "more a statement of the case than an accurate
definition").
18
424, 427 (5th Cir. 1992); United States v. Sanchez, 961 F.2d 1169,
1173 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 320, 121 L.
Ed. 2d 248 (1992). The government need not prove the occurrence of
the quid pro quo; proof of the agreement will suffice. Evans v.
United States, 504 U.S. ___, ___, 112 S. Ct. 1881, 1889, 119 L. Ed.
2d 57 (1992) ("[T]he Government need only show that a public
official has obtained a payment to which he was not entitled,
knowing that the payment was made in return for official acts.").19
Thus, we "consider both direct and circumstantial evidence,
including the context in which a conversation took place, to
determine if there was a meeting of the minds on a quid pro quo."
Carpenter, 961 F.2d at 827.
Tomblin argues that, at most, he had only a general
expectation of future benefit, and that Mauldin and Lachelli were
so vague about the terms of the quid pro quo that the government
failed to establish its proof beyond a reasonable doubt. "[T]he
explicitness requirement is satisfied [, however,] so long as the
terms of the quid pro quo are clear and unambiguous." Id. Mauldin
testified that Tomblin offered him ten percent of the Grenada
venture, and that Tomblin encouraged Ladoucer to pay $725.15 for
19
See also United States v. Coyne, 4 F.3d 100, 114 (2d Cir. 1993)
("[T]he government does not have to prove an explicit promise to perform a
particular act made at the time of payment. Rather, it is sufficient if the
public official understands that he or she is expected as a result of the payment
to exercise particular kinds of influence . . . as specific opportunities
arise."), cert. denied, ___ U.S. ___, 114 S. Ct. 929, 127 L. Ed. 2d 221 (1994);
United States v. Carpenter, 961 F.2d 824, 827 (9th Cir.) (refusing to require a
specific statement by official regarding intent, otherwise officials could
"escape liability . . . with winks and nods, even when the evidence as a whole
proves that there has been a meeting of the minds to exchange official action for
money"), cert. denied, ___ U.S. ___, 113 S. Ct. 332, 121 L. Ed. 2d 250 (1992).
19
Mauldin's trip to San Antonio, and that Tomblin was arranging for
a $50,000 contribution to Senator Hecht's campaign fund. Mauldin
also testified that he accepted or agreed to accept these sums as
bribes. Lachelli testified that Tomblin intended for ten percent
of the Grenada business to go to Mauldin. Lastly, the tapes reveal
that Tomblin himself admitted to these acts.20 Although Tomblin
testified at trial to an innocent motivation for each of these
actions,21 the evidence viewed in the light most favorable to the
verdict was nonetheless sufficient for the jury to find beyond a
reasonable doubt that Tomblin intended to commit and aid and abet
in the commission of bribery.22
20
When Ladoucer said, "I guess I, uh, have a first class seat to take
care of tomorrow," and Mauldin replied that he did not fly first class, Tomblin
responded, "You should have." Regarding the fundraiser, Tomblin said, "I want
to gear it to the success," and "we're going to guarantee 50,000 here." Lastly,
Tomblin's statements about the stock he promised Mauldin included, "I told Glen
he got 10%;" "he gets 10% of our side;" "Glen's 10% is going to be split with
Chic. . . . But I never said that, and I'll call you a liar from the highest
tree." When asked where the money would eventually go, Tomblin answered,
"Straight to Chic." When Ladoucer asked how the group would get certain Navy
contracts, Tomblin responded, "That's what Chic's job is." Tomblin also made
statements about his own understanding that Mauldin would attend the meeting with
Chairman Wall to show Ladoucer's "stroke" with Senator Hecht. Lastly, in a
discussion over their Grenadan plans, Tomblin stated, "The reason Glen [Mauldin]
is going to stay involved is because then we can get some IMF money deposited."
21
Specifically, Tomblin testified that: "I wanted to reserve ten
percent of the stock to offer to someone in the future," and "it was still
something that was going to be discussed after they left office." In response
to a question about a link between the fundraiser and the meeting with Chairman
Wall, Tomblin replied, "Absolutely not."
22
Because we find the evidence sufficient to justify the jury's verdict
on the bribery counts, we do not address Tomblin's arguments that, because he
should not have been convicted of bribery, his aiding and abetting and conspiracy
convictions are invalid. See United States v. Curran, 20 F.3d 560, 571 (3d Cir.
1994) (requiring reversal of conspiracy conviction only if underlying illegality
reversed).
20
C
Tomblin also challenges his extortion conviction on several
grounds. He argues first that the evidence was insufficient to
support the jury's finding that the alleged extortion affected
interstate commerce. He also argues that, because he was not a
public official, he could not be convicted of extorting money under
color of official right. Next, Tomblin contends that the district
court improperly refused to give his requested instruction
regarding fear of economic harm. He further asserts that the
evidence was insufficient to convict him of extorting money through
fear of economic harm. Lastly, he argues that, even if the
evidence was sufficient on the fear of economic harm theory, the
insufficiency on the under color of official right theory requires
reversal because the instructions asked only for a general verdict
on the extortion count.23
1
Tomblin argues that the government failed to establish that
the alleged extortion affected interstate commerce. An effect on
interstate commerce is a required element of the offense of
extortion under the Hobbs Act. United States v. Stephens, 964 F.2d
424, 429 (5th Cir. 1992). Such an effect, however, need only be
slight. United States v. Coyne, 4 F.3d 100, 111 (2d Cir. 1993),
cert. denied, ___ U.S. ___, 114 S. Ct. 929, 127 L. Ed. 2d 221
23
The court instructed the jury that it could find Tomblin guilty of
extortion "by wrongful use of actual or threatened fear of economic harm or under
color of official right" (emphasis added).
21
(1994); see also Stephens, 964 F.2d at 429 ("The impact on
interstate commerce need not be substantial to meet the statutory
requirement; all that is required is that commerce be affected by
the extortion."); United States v. Haimowitz, 725 F.2d 1561, 1573
(11th Cir.) ("[A] showing of minimal effect on interstate commerce
will sustain jurisdiction under the statute."), cert. denied, 469
U.S. 1072, 105 S. Ct. 563, 83 L. Ed. 2d 504 (1984). The government
established that Suburban funds crossed state borders as a normal
part of its business. Indeed, the loan to Tomblin was for an out-
of-state restaurant. Payment from funds of a business engaged in
interstate commerce satisfies the requirement of an effect on
interstate commerce. Coyne, 4 F.3d at 111. Consequently, the
evidence was sufficient to support the jury's finding that the
alleged extortion affected interstate commerce.
2
Tomblin next contends that, because he was a private citizen,
he cannot be convicted of extortion under color of official right.
Usually, only public officials are charged with extorting property
under color of official right. See United States v. Snyder, 930
F.2d 1090, 1093 (5th Cir.) (discussing trial court's definition
that "extortion under color of official right means the wrongful
taking by a public officer of money or property not due to the
officer or the office"), cert. denied, ___ U.S. ___, 112 S. Ct.
380, 116 L. Ed. 2d 331 (1991). The official need not actually have
the powers he threatens to use, nor is the offense limited to
22
elected officials. See United States v. Freeman, 6 F.3d 586, 593
(9th Cir. 1993) ("[T]he Hobbs Act reaches anyone who actually
exercises official powers, regardless of whether those powers were
conferred by election, appointment, or some other method."), cert.
denied, ___ U.S. ___, 114 S. Ct. 1661, 128 L. Ed. 2d 378 (1994).
Moreover, the victim need not actually know the official's
position; it is enough that the victim reasonably believe the
official can do what he threatens. Stephens, 964 F.2d at 430
(holding that victim need not know extortioner's official position,
so long as victim believes extortioner has power to carry out
threats). Private persons have been convicted of extortion under
color of official right, but these cases have been limited to ones
in which a person masqueraded as a public official,24 was in the
process of becoming a public official,25 or aided and abetted a
public official's receipt of money to which he was not entitled.26
All these cases involved a public official in some past, present,
or future capacity receiving money.
In contrast, the extortion for which Tomblin was
convicted))coercing the $250,000 loan from Ladoucer and
24
See United States v. McClain, 934 F.2d 822, 830 (7th Cir. 1991)
(acknowledging that "under color of official right" can apply to private person
masquerading as official).
25
See United States v. Meyers, 529 F.2d 1033, 1036-37 (7th Cir.)
(affirming conspiracy conviction even though defendants were not officials yet),
cert. denied, 429 U.S. 894, 97 S. Ct. 253, 50 L. Ed. 2d 176 (1976).
26
See United States v. Margiotta, 688 F.2d 108, 131 (2d Cir. 1982)
(affirming private person's conviction for aiding and abetting public official's
extortion), cert. denied, 461 U.S. 913, 103 S. Ct. 1891, 77 L. Ed. 2d 282 (1983).
23
Gonzalez))did not result in the receipt of money by any public
official. Tomblin was not a public official, nor was he in the
process of becoming one. Moreover, although he may have "cloaked"
himself in the Senator's authority, as the government argues, no
one believed that he was a public official, especially not his
purported victims, Ladoucer and Gonzales. He was convicted of
threatening to use his political influence against Ladoucer and
Gonzales, but this power was not official power; it was unofficial
power over an official.
Determining whether Tomblin's actions can constitute acting
under color of official right requires us to interpret the
statutory language of the Hobbs Act. The plain meaning of the
statute does not clearly indicate who can act under color of
official right, Freeman, 6 F.3d at 592 ("The Hobbs Act does not
define `under color of official right.'"), although the very use of
the word "official" suggests that an official must be involved in
some manner for an offense to occur. Consequently, we look to the
legislative history for further guidance. Although the legislative
history of the original Anti-Racketeering Act did not discuss
"under color of official right,"27 that of the Hobbs Act28 provides
a glimmer of direction. It indicates that Congress preserved the
27
See H.R. Rep. No. 1833, 73d Cong., 2d Sess. 1-2 (1934); S. Rep. No.
532, 73d Cong., 2d Sess. 1-2 (1934).
28
See S. Rep. No. 1516, 79th Cong., 2d Sess. 1 (1946); H. R. Rep. No.
238, 79th Cong., 1st Sess. 1-2 (1945).
24
common law definition of extortion,29 under which extortion could
only be committed by a public official.30
In passing the Hobbs Act, Congress intended to make a
distinction between the "fear of harm" ground and the "under color
of official right" ground. United States v. McClain, 934 F.2d 822,
830 (7th Cir. 1991). This is understandable because the official's
position provides the coercive element that the threats and fear of
the other ground supply. Id. Accordingly, we agree with the
Seventh Circuit that in circumstances such as those in this case,
a private person cannot be convicted of extortion under color of
official right. See McClain, 934 F.2d at 831 ("[A]s a general
matter and with caveats as suggested here, proceeding against
private citizens on an `official right' theory is inappropriate
under the literal and historical meaning of the Hobbs Act,
irrespective of the actual `control' that citizen purports to
maintain over governmental activity.").
3
Tomblin also challenges the district court's refusal to grant
29
91 Cong. Rec. 11908 ("The definitions of . . . extortion set out in
this bill . . . are defined in substantially the same way by the laws of every
state in the Union.") (statement of Rep. Robson); id. at 11914 ("Wherever
jurisprudence has had its sway robbery and extortion have been defined. There
is no use defining those terms because they are so well defined that their
definition now is a matter of common knowledge.") (statement of Rep. Russell).
30
See United States v. Nardello, 393 U.S. 286, 289, 89 S. Ct. 534, 536,
21 L. Ed. 2d 487 (1969) ("At common law a public official who under color of
office obtained the property of another not due either to the office or the
official was guilty of extortion."); United States v. Kenny, 462 F.2d 1205, 1229
(3d Cir. 1972) (defining common law extortion as "a crime which could only be
committed by a public official"); James Lindgren, The Elusive Distinction Between
Bribery and Extortion: From the Common Law to the Hobbs Act, 35 U.C.L.A. L. Rev.
815 (1988) (narrating the common-law history of extortion).
25
his requested jury instruction regarding fear of economic harm.31
Specifically, he argues that the jury instruction actually given
did not require the jury to find a fear of actual harm.32 Extortion
by wrongful use of fear includes fear of economic harm. United
States v. Garcia, 907 F.2d 380, 381 (2d Cir. 1990); United States
v. Brecht, 540 F.2d 45, 52 (2d Cir. 1976), cert. denied, 429 U.S.
1123, 97 S. Ct. 1160, 51 L. Ed. 2d 573 (1977). Although the
defendant must at least know of the potential harm, we consider the
existence of fear from the perspective of the victim. Garcia, 907
31
Defendant's Requested Instructions #27-30 stated that:
Before TOMBLIN can be convicted of extortion, the government
must also prove that he obtained the property from Suburban Savings
and Loan Association by the wrongful use of fear of economic loss or
harm. The fear must be the loss of something to which Suburban was
legally entitled. If the loan was made because Suburban felt that
it stood to gain by making the loan, and not out of fear of economic
loss, that is not extortion. In other words, if Suburban had no
reason to fear an economic loss upon not making the loan, but
instead, stood only to improve its economic condition by making the
loan, TOMBLIN is not guilty of extortion.
Further, before you may convict TOMBLIN of extortion as
alleged in Count 3 of the Indictment, you must find beyond a
reasonable doubt that TOMBLIN knew the loan was being made because
Suburban Savings and Loan feared an economic loss. TOMBLIN claims
that he believed Suburban was making the loan because it was
sufficiently collateralized; because he believed he was financially
capable of obtaining the loan and that Suburban held a similar
belief; and that the loan was of mutual benefit for each party and,
therefore, properly negotiated . . . .
Before TOMBLIN can be found guilty of extortion as alleged in
count three of the indictment, you must find beyond a reasonable
doubt that he received the loan from Suburban Saving and Loan
Association knowing that he was not legally entitled to receive it
and further knowing that the loan was being made because Suburban
feared an economic loss.
TOMBLIN asserts that he believed the loan was sufficiently
collateralized, that it was made for value, i.e. a negotiated
interest rate, and that it was made for a proper business
purposes))the completion of his restaurant. Under such terms,
TOMBLIN claims he believed he was obtaining the loan properly. If
you find that TOMBLIN so believed, or you have a reasonable doubt as
to whether or not he so believed, you must acquit TOMBLIN . . . .
32
See supra Part II.B.1 for the proper standard of review for
challenges to jury instructions.
26
F.2d at 385 ("[T]he government must at least prove the existence of
the victim's belief that the defendant had the power to harm it and
the victim's fear that the defendant would exploit that power.");
United States v. Capo, 817 F.2d 947, 951 (2d Cir. 1987)
(considering fear "from the perspective of the victim, not the
extortionist; the proof must establish that the victim reasonably
believed: first, that the defendant had the power to harm the
victim, and second, that the defendant would exploit that power to
their victim's detriment"). Moreover, the defendant need not
create the fear, so long as the defendant uses it to extort
property. United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.
1980), cert. denied, 450 U.S. 920, 101 S. Ct. 1369, 67 L. Ed. 2d
348 (1981). The fear, however, must be of a loss;33 fear of losing
a potential benefit does not suffice.34 Again, both the
instructions requested as well as those actually given correctly
address the law. Pennington, 20 F.3d at 600. Consequently, the
issue is whether the instruction given by the trial court
substantially covers the applicable law necessary for Tomblin to
argue his theory of defense. Id.
As with the bribery counts, the trial court instructed on
extortion in accordance with the Fifth Circuit Pattern Jury
33
See Haimowitz, 725 F.2d at 1572 (upholding extortion conviction where
license vital to economic health of business and official threatened to quit
helping if not paid).
34
See Capo, 817 F.2d at 954 (finding no extortion by fear of economic
harm where "all the evidence points to the conclusion that they paid voluntarily
to improve their chances to get jobs they had not been able to obtain on their
own").
27
Instructions 2.68 and 2.69.35 Tomblin argues that the instruction
given does not adequately distinguish between fear of an actual
loss and fear of deprivation of a future benefit. The instruction
as given fully allowed Tomblin to argue that Ladoucer and Gonzales
only feared that they would not receive the benefit of a meeting
with Chairman Wall, and that consequently, their fear was not of an
actual loss. See United States v. Turner, 960 F.2d 461, 464 (5th
Cir. 1992) (denying defendant's requested instruction because "more
a statement of the case than an accurate definition").36 Therefore,
35
The actual instruction read as follows:
Count three of the indictment charges the Defendant with
extortion.
Title 18, United States Code, Section 1951(a), makes it a
crime for anyone to obstruct commerce by extortion. Extortion means
the obtaining of or attempting to obtain property from another, with
that person's consent, when the consent is induced by wrongful use
of actual or threatened fear of economic harm [or] under color of
official right.
For you to find the Defendant guilty of this crime, you must
be convinced that the Government has proved each of the following
beyond a reasonable doubt:
First: That the Defendant obtained property from another with
that person's consent;
Second: That the Defendant did so by wrongful use of actual
or threatened fear of economic harm or under color of official
right; and
Third: That the Defendant's conduct interfered with and
affected interstate commerce.
. . .
The term "fear" includes fear of economic loss or damage. It
is not necessary that the Government prove that the fear was a
consequence of a direct threat; it is sufficient for the Government
to show that the victim's fear was reasonable under the
circumstances.
The use of actual or threatened fear is "wrongful" if its
purpose is to cause the victim to give property to someone who has
no legitimate claim to the property.
36
See also United States v. Duvall, 846 F.2d 966, 972 (5th Cir. 1988)
(affirming instructions that "provided an adequate basis for [defendants] to
present to the jury a [specific theory of] defense"); United States v. Dozier,
672 F.2d 531, 542 (5th Cir.) (approving instructions that "fairly presented the
issues to the jury"), cert. denied, 459 U.S. 943, 103 S. Ct. 256, 74 L. Ed. 2d
200 (1982).
28
the instruction as given substantially covers the law and allowed
Tomblin to argue his theory of defense, and the district court did
not abuse its discretion in refusing to instruct as requested.
4
Assuming that the instruction was proper, Tomblin further
argues that the evidence was insufficient for the jury to convict
him of extortion by wrongful use of fear of economic harm.37
Tomblin argues that Ladoucer and Gonzalez only feared that they
would not receive a meeting with Chairman Wall, and that this fear
was insufficient to support an extortion conviction. See Garcia,
907 F.2d at 383 (reversing conviction where victim merely hoped for
improved chances on future contracts, because paying for beneficial
activity "is not the mindset of a victim of economic extortion");
Capo, 817 F.2d at 954 (reversing conviction where victims desired
better probability that they would secure employment). We
distinguish these cases, however, because although Ladoucer and
Gonzalez did fear they would not get their meeting, they primarily
feared that they would lose their investment in Suburban.38
Moreover, it was Tomblin who first convinced Ladoucer and Gonzalez
to forgo other avenues and seek forbearance; they had already taken
action in reliance on his promise of help before he made his demand
for money. Accordingly, the evidence of that loss does qualify
37
See supra Part II.B.2 for the proper standard of review for
challenges to the sufficiency of the evidence.
38
Gonzalez testified that, "We'd have to let our money sit in Suburban
Savings," and "We would have lost $1,000,000."
29
under the statute. Gonzalez testified that Tomblin threatened not
to help them unless they either paid him a fee or gave him a loan.39
Consequently, the evidence sufficiently supported the jury's
finding that Tomblin had extorted money by wrongful use of fear of
economic harm beyond a reasonable doubt.
5
Even though the evidence was sufficient to convict Tomblin of
extortion by wrongful use of fear of economic harm, he contends
that the insufficiency of the "under color of official right" prong
requires a reversal because both theories were submitted to the
jury on a single count. When only one of multiple theories
submitted to a jury is sufficient, whether this requires reversal
depends on the nature of the insufficiency.
[W]hen disjunctive theories are submitted to the jury and
the jury renders a general verdict of guilty, appeals
based on evidentiary deficiencies must be treated
differently than those based on legal deficiencies. If
the challenge is evidentiary, as long as there was
sufficient evidence to support one of the theories
presented, then the verdict should be affirmed. However,
if the challenge is legal and any of the theories was
legally insufficient, then the verdict must be reversed.
United States v. Garcia, 992 F.2d 409, 416 (2d Cir. 1993). The
reason for the varying treatment is that jurors can, from their own
experience, weed out evidentiary deficiencies,40 but not legal
39
Gonzalez stated: "[B]asically what he told me in a nutshell was, `If
you don't lend me the $250,000, then it's going to cost you $100,000 to see the
Senator and Danny Wall in Washington, D.C., and that's coming to me as a fee.'"
40
See United States v. Self, 2 F.3d 1071, 1093 (10th Cir. 1993)
(requiring reversal "if the jury could have based its verdict on a legally or
constitutionally infirm objective; however, factual insufficiency of one or more
objectives does not require reversal as we will presume that the jury rejected
30
insufficiencies.41
Legal insufficiency occurs when, even if the government proved
everything it possibly could prove, the defendant's conduct would
not constitute the crime charged. Self, 2 F.3d at 1093 (reversing
conviction where, for one theory, "both the government and the
district court were mistaken about the law . . . and, therefore,
Defendant's actions were not within the statutory definition of the
crime"). Because Tomblin was not a public official, conviction for
extortion could have been based on a legally insufficient ground.
Therefore, even if the evidence and instructions properly allowed
the jury to convict on a theory of fear of economic harm, we cannot
presume that the jury based its verdict on the legally sufficient
ground, and we must reverse Tomblin's extortion conviction.
D
Tomblin further contends that the district court should have
granted him a new trial on the grounds of prosecutorial misconduct.
He first argues that the prosecutor's cross-examination of one of
his witnesses went beyond the scope of direct examination. Next,
he asserts that the prosecutor improperly injected inadmissible
character evidence into his cross-examination of Tomblin. Lastly,
he contends that the prosecutor made improper, prejudicial comments
the factually inadequate theory and convicted on an alternative ground for which
the evidence was sufficient").
41
Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 474, 116 L.
Ed. 2d 371 (1991) ("When, therefore, jurors have been left the option of relying
upon a legally inadequate theory, there is not reason to think that their own
intelligence and expertise will save them from error.").
31
during closing arguments.
Because Tomblin did not preserve error by objecting to these
instances of alleged prosecutorial misconduct at trial, we review
these claims only for plain error. See Fed. R. Evid. 103
(requiring specific and timely objection to errors affecting
substantial rights, but allowing notice of "plain errors affecting
substantial rights although they were not brought to the attention
of the court"). "[A]n error must be clearly evident to be plain
. . . ." United States v. Calverley, 37 F.3d 160, 163 (5th Cir.
1994) (en banc); see also United States v. Olano, ___ U.S. ___,
___, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993) ("`Plain' is
synonymous with `clear' or, equivalently, `obvious.'"); Peretz v.
United States, 501 U.S. 928, ___, 111 S. Ct. 2661, 2678, 115 L. Ed.
2d 808 (1991) (Scalia, J., dissenting) (holding plain error to be
"errors that are obvious"); United States v. Young, 470 U.S. 1, 16
n.14, 105 S. Ct. 1038, 1047 n.14, 84 L. Ed. 2d 1 (1985) (equating
"plain" with "readily apparent"). Moreover, even if we find plain
error, it is within our discretion whether or not to reverse. See
Olano, ___ U.S. at ___, 113 S. Ct. at 1778 ("Rule 52(b) [defining
plain error] is permissive, not mandatory. . . . [T]he Court of
Appeals has authority to order correction, but is not required to
do so."); Calverley, 37 F.3d at 164 ("[A]n appellate court is
empowered, in its discretion, to correct the assigned error.").
1
Tomblin first argues that the prosecutor's cross-examination
32
of George Chall, Tomblin's witness, about Tomblin's connection to
bankrupt restaurants exceeded the scope of direct examination.
Rule 611(b) of the Federal Rules of Evidence requires that cross-
examination "should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness."
Fed. R. Evid. 611(b). The subject matter of direct examination,
for the purpose of cross-examination, is "liberally construed to
include all inferences and implications arising from such
testimony." United States v. Arnott, 704 F.2d 322, 324 (6th Cir.),
cert. denied, 464 U.S. 948, 104 S. Ct. 364, 78 L. Ed. 2d 325
(1983). Rule 611 allows, but does not require, the district court
to permit cross-examination that exceeds the scope of direct
examination. United States v. Lowenberg, 853 F.2d 295 (5th Cir.
1988), cert. denied, 489 U.S. 1032, 109 S. Ct. 1170, 103 L. Ed. 2d
228 (1989).
Tomblin contends that his direct examination of Chall focused
on Chall's introduction of Ladoucer to Tomblin and Ladoucer and
Tomblin's subsequent business dealings. On direct examination,
Chall testified that Ladoucer informed him that he had mortgage
notes that he wanted to sell, and that he had heard that Tomblin
was involved with a mortgage company. Chall testified that he
arranged a meeting between Ladoucer and Tomblin so that they could
discuss the sale of mortgage notes. On cross-examination, the
prosecutor asked Chall if he knew that Tomblin had been involved
with bankrupt restaurants and Chall said that he did. Tomblin did
33
not object.42 The prosecutor directed the cross-examination
questions at what Chall knew about Tomblin's business dealings, and
we can fairly infer the questions' basis from the direct
examination. Consequently, we find no error on this point.
Tomblin also argues that, because Chall did not testify about
Tomblin's character, the prosecutor's questions to Chall about
Tomblin's character on cross-examination were outside the scope of
direct examination.43 If so, then Chall's testimony about Tomblin's
character constitutes impermissible character evidence under
Federal Rule of Evidence 404(b).44 The two-prong test outlined in
42
Tomblin did object to the prosecution's cross-examination questions
to Chall concerning Tomblin's involvement in business enterprises in Las Vegas
and the trial court overruled the objection. However, Tomblin's objection must
fully apprise the trial court of the specific grounds of the objection. United
States v. Waldrip, 981 F.2d 799, 804 (5th Cir. 1993). "A loosely formulated and
imprecise objection will not preserve error." United States v. Jimenez Lopez,
873 F.2d 769, 773 (5th Cir. 1989). Tomblin did not specifically object to the
prosecutor's questions about Tomblin's involvement with restaurants allegedly
gone bankrupt. Further, Chall testified that one of the alleged bankrupt
restaurants was located in Las Vegas, and a second was located in Austin, Texas.
Tomblin's objection, therefore, did not meet the specificity requirements of Rule
103. Fed. R. Evid. 103(a)(1).
43
On cross-examination, the prosecutor asked Chall whether Tomblin had
ever bragged to Chall about how much money Tomblin had made on the restaurant
bankruptcies.
Q: There was a restaurant in Las Vegas that went bankrupt, and a
restaurant in Austin that went bankrupt, correct?
A: Yes.
Q: Darrell Tomblin ever brag to you about how much money he made
on those ventures?
A: No, sir.
Q: Did he ever tell you about how much money he made in
bankruptcies on those?
A: No, sir.
Because the prosecutor's questions insinuated that Tomblin was guilty of some
wrong, misconduct, or crime in relation to the restaurant bankruptcies, the
questions also commented on Tomblin's character. See United States v. Park, 525
F.2d 1279, 1284-85 (5th Cir. 1976) (criticizing insinuating questions that imply
wrongdoing).
44
Rule 404(b) states that:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
34
United States v. Beechum45 applies to the admissibility of evidence
under Rule 404(b). First, the evidence must be relevant to an
issue other than the defendant's character, and second, the
evidence must comply with Rule 403 in that its probative value must
not be substantially outweighed by undue prejudice. 582 F.2d at
911.46
A review of the record reveals nothing in Tomblin's direct
examination of Chall that provided grounds for the prosecutor to
cross-examine Chall on Tomblin's character.47 Further, the
prosecutor's questions to Chall did not relate to Tomblin's
business dealings, but to Tomblin's alleged bragging about
profiting from his businesses' bankruptcies.48 Thus, the questions
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan
knowledge, identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at
trial.
Fed. R. Evid. 404(b).
45
582 F.2d 898 (5th Cir. 1978), cert. denied, 440 U.S. 920, 99 S. Ct.
1244, 59 L. Ed. 2d 472 (1979).
46
Rule 403 provides that: "Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence."
Fed. R. Evid. 403.
47
Because we conclude that Chall did not testify about Tomblin's
character, we do not reach Tomblin's alternative argument that even if Chall
testified about Tomblin's character, the prosecutor's cross-examination about
Tomblin's alleged misconduct was not made in good faith, as required by Federal
Rule of Evidence 608(b).
48
The prosecutor apparently based these questions on an FBI
investigation of Tomblin's bankruptcies.
35
did not relate to any issue other than Tomblin's character and fail
the threshold inquiry under Rule 404(b). See Huddleston v. United
States, 485 U.S. 681, 685, 108 S. Ct. 1496, 1499, 99 L. Ed. 2d 771
(1988) (requiring court to examine first whether character evidence
under Rule 404(b) is probative of material issues other than
character). Moreover, it is unlikely that Chall's negative
responses to the prosecutor's questions controverted the
insinuation of misconduct. See United States v. Davenport, 753
F.2d 1460, 1463 (9th Cir. 1985) ("The prejudice to the defendant
was, thus, created by the question itself rather than by the
testimony given in response."). Thus, the probative value of the
prosecutor's cross-examination of Chall regarding Tomblin's
character was substantially outweighed by its prejudicial affect
and, therefore, it fails the second prong of the Beechum test.
However, a review of the entire record and the evidence against
Tomblin convinces us that the introduction of the character
testimony does not require reversal, because the jury would have
returned a verdict of guilty against Tomblin even without the
prejudicial testimony. United States v. Hasting, 461 U.S. 499,
510-11, 103 S. Ct. 1974, 1981, 76 L. Ed. 2d 96 (1983) (noting that
"there can be no such thing as an error-free, perfect trial
. . ." and denying reversal because the error was harmless beyond
a reasonable doubt).49
49
We note that, had we addressed Tomblin's Rule 608(b) good faith
argument, we would have reached the same conclusion.
36
2
Tomblin also argues that, because the prosecutor did not
provide advance notice, the introduction of evidence of other bad
acts when cross-examining Tomblin violated Federal Rule of Evidence
404(b).50 The government contends that the other-acts evidence was
proper under Rule 608(b) because it was introduced only to impeach
Tomblin and was not offered in the prosecutor's case in chief.51
Whether Rule 404(b) or Rule 608(b) applies to the admissibility of
other-act evidence depends on the purpose for which the prosecutor
introduced the other-acts evidence. United States v. Schwab, 886
F.2d 509, 511 (2d Cir. 1989), cert. denied, 493 U.S. 1080, 110 S.
Ct. 1136, 107 L. Ed. 2d 1041 (1990). Rule 404(b) applies when
other-acts evidence is offered as relevant to an issue in the case,
such as identity or intent. Id. Rule 608(b) applies when other-
acts evidence is offered to impeach a witness, "to show the
character of the witness for untruthfulness," or to show bias. Id.
50
Rule 404(b) requires the prosecution in a criminal case to provide
notice in advance of trial of its intent to use other acts evidence. Fed. R.
Evid. 404(b) advisory committee notes (stating that the purpose of the notice
requirement is to reduce surprise and promote early resolution of admissibility
issues).
51
Rule 608(b) states that: "Specific instances of the conduct of a
witness, for the purpose of attacking or supporting the witness' credibility
. . . may, however, in the discretion of the court, if probative of truthfulness
or untruthfulness, be inquired into on cross-examination of the witness (1)
concerning the witness' character for truthfulness or untruthfulness . . . ."
Fed. R. Evid. 608(b). Unlike Rule 404(b), however, Rule 608(b) does not require
advance notice of the prosecutor's intent to use specific instances of
defendant's conduct to impeach the defendant when he testifies. United States
v. Baskes, 649 F.2d 471, 477 (7th Cir. 1980) ("No rule or rationale guarantees
the defense advance knowledge of legitimate impeachment before it calls a
witness."), cert. denied, 450 U.S. 1000, 101 S. Ct. 1706, 68 L. Ed. 2d 201
(1981).
37
The prosecutor contends that his cross-examination questions were
probative of Tomblin's character for truthfulness.
A defendant makes his character an issue when he testifies.
Waldrip, 981 F.2d at 803; United States v. Blake, 941 F.2d 334, 340
(5th Cir. 1991), cert. denied, ___ U.S. ___, 113 S. Ct. 596, 121 L.
Ed. 2d 533 (1992). The government is entitled to cross-examine
properly and effectively a witness in an effort to elicit the
truth. United States v. Havens, 446 U.S. 620, 626-27, 100 S. Ct.
1912, 1916, 64 L. Ed. 2d 559 (1980). However, "a prosecutor may
not use impeachment as a guise for submitting to the jury
substantive evidence that is otherwise unavailable." United States
v. Silverstein, 737 F.2d 864, 868 (10th Cir. 1984). Rather, "Rule
608 authorizes inquiry only into instances of misconduct that are
`clearly probative of truthfulness or untruthfulness,' such as
perjury, fraud, swindling, forgery, bribery, and embezzlement."
United States v. Leake, 642 F.2d 715, 718 (4th Cir. 1981) (citing
Fed. R. Evid. 608); see also Waldrip, 981 F.2d at 803 (applying
Leake standard to forgery evidence).
When Tomblin testified, the prosecutor questioned him on
cross-examination about alleged acts of misconduct. Tomblin
complains of the prosecutor's cross-examination questions about an
alleged F.E.C. investigation of Tomblin's involvement in a
political candidate's campaign, Tomblin's alleged hiring of a
lawyer to pay-off foreign officials, and an investigation of
Tomblin by the F.B.I. for alleged bankruptcy fraud. Tomblin also
38
complains of the prosecutor's cross-examination about whether
Tomblin had skimmed $110,000 from his bankrupt restaurant in
Austin, Texas, put the money in a shoe box, and fled from Texas to
Florida. The prosecutor's cross-examination questions were
directed at Tomblin's alleged acts of fraud, bribery, and
embezzlement.52 As such, the prosecutor's questions were probative
of Tomblin's character for truthfulness and were permissible under
Rule 608(b). Accordingly, we conclude that the provision of Rule
404(b) that requires the prosecutor to give notice of his intention
to use other-acts evidence does not apply here.53
3
Tomblin next argues that the prosecutor made improper remarks
during his closing argument which constitute plain error and
require reversal. When the prosecutor's remarks during closing
argument are both inappropriate and harmful, a defendant may be
entitled to a new trial. United States v. Simpson, 901 F.2d 1223,
1227 (5th Cir. 1990), cert. denied, ___ U.S. ___, 114 S. Ct. 486,
126 L. Ed. 2d 436 (1993). The prosecutor's improper remarks
52
Rule 608(b) does require a good-faith basis for the questions.
Tomblin, however, did not raise lack of good faith in a contemporaneous
objection. Further, the record shows that the prosecutor gathered his foundation
from the wiretaps.
53
In a pretrial hearing, Tomblin stated that if the prosecutor intended
to introduce Rule 404(b) evidence, Tomblin would seek to limit its use through
his motion in limine. The prosecutor responded that he did not intend to
introduce Rule 404(b) evidence, but he reserved the right to introduce evidence
of other misconduct to impeach Tomblin should Tomblin testify. It is not clear
that the judge gave a ruling on this part of the motion. Because we find the
evidence permissible under Rule 608(b), we do not address Tomblin's argument that
the evidence violated his 404(b) motion.
39
standing alone, however, are insufficient to overturn a criminal
conviction. United States v. Young, 470 U.S. 1, 11, 105 S. Ct.
1038, 1044, 84 L. Ed. 2d 1 (1985). Rather, the defendant must show
that the prosecutor's remarks affected his substantial rights.
Simpson, 901 F.2d at 1227.54 "To determine whether the argument
affected the defendant's substantial rights, we examine (1) the
magnitude of the statement's prejudice, (2) the effect of any
cautionary instructions given, and (3) the strength of the evidence
of the defendant's guilt." Simpson, 901 F.2d at 1227; Lowenberg,
853 F.2d at 302.
Tomblin first contends that the prosecutor's comments on
Tomblin's cross-examination testimony were improper because the
prosecutor did not "force" Tomblin to respond to the questions and
therefore did not have "evidence" from Tomblin. During closing
arguments, however, the prosecutor may give a fair appraisal of the
defendant's testimony. See Simpson, 901 F.2d at 1227 (permitting
prosecutor to paraphrase and summarize testimony); Beechum, 582
F.2d at 898 (permitting prosecutor to appraise defendant's
testimony). The prosecutor referred in his closing argument to
Tomblin's failure to admit or deny on cross-examination whether he
removed money from his bankrupt Austin restaurant and Tomblin's
54
See also United States v. Carter, 953 F.2d 1449, 1457 (5th Cir.)
("This Court's task in reviewing a claim of prosecutorial misconduct is to decide
whether the misconduct casts such serious doubt upon the correctness of the
jury's verdict."), cert. denied, ___ U.S. ___, 112 S. Ct. 2980, 119 L. Ed. 2d 598
(1992); Lowenberg, 853 F.2d at 301 (questioning "not [merely] the impropriety of
the prosecutor's remarks but whether these remarks were so inflammatory that they
entitle the defendant to a new trial").
40
response that instead asked the prosecutor whether he had any
tapes.55 Since Tomblin had placed his credibility at issue when he
testified, it was not impermissible for the prosecutor to give a
fair appraisal of Tomblin's testimony that implicated his
credibility. Consequently, the prosecutor's appraisal of Tomblin's
cross-examination testimony was proper.
Tomblin also contends that the prosecutor implied that
Tomblin's own attorney believed he was guilty of the crimes
charged. Statements in closing argument that presuppose a
defendant's guilt can be the sort of "foul blows" long held
improper. United States v. Goff, 847 F.2d 149, 164 (5th Cir.),
cert. denied, 488 U.S. 932, 109 S. Ct. 324, 102 L. Ed. 2d 341
(1988). In the prosecutor's rebuttal closing argument, he stated
that Tomblin's attorney did not want to try the case because the
evidence was overwhelming; instead, Tomblin's attorney attempted to
put other persons on trial.56 Taken in context, the prosecutor did
55
"Finally, ladies and gentlemen, if you have any
lingering doubt about Darrell Tomblin's corrupt intent,
think back, please, to the time when Mr. Bennett was
asking him about skimming the $110,000 from the bar
receipts from the bar in Austin and taking those
receipts to Sarasota with him in a shoe box and then
asking Robert Dejong to lie to the F.B.I. for him.
Darrell Tomblin didn't deny it and he didn't admit it.
What he did was say, 'Do you have any tapes? Do you
have any tapes?' When it comes to the crimes charged
here))here, we have tapes."
56
The prosecutor commented:
[I]t was quite clear [defense counsel] and Mr. Tomblin did not want
to try the case. They did not want to appear before you. . . . This
is a case that is truly overwhelming in the strength of its
evidence. Knowing what all the evidence would be, I don't blame
them for not wanting the try the case. Instead, they tried to shift
who was on trial here. . . . They tried to try a different case. He
strove mightily to try someone else. He wanted to put Glen Mauldin
41
not imply that Tomblin's attorney himself believed that Tomblin was
guilty. Rather, the prosecutor fairly commented on the weight of
the evidence and Tomblin's trial strategy. Accordingly, the
prosecutor's comments were neither improper nor harmful.
Tomblin lastly contends that the prosecutor bolstered his case
and the testimony of his witnesses by investing them with the
integrity of the state.57 The possible prejudice of a prosecutor's
"reverse conspiracy" argument is that the jury could reasonably
infer that it must "abandon confidence in the integrity of the
government" before it could acquit the defendant. Goff, 847 F.2d
at 164. Additionally, such argument could bolster its witnesses in
the eyes of the jury by stamping them with the integrity of the
sovereign. United States v. Dorr, 636 F.2d 117, 119-20 (5th Cir.
Unit A 1981). The prosecutor's remark in this case is similar to
the one condemned as prejudicial in Goff. Consequently, we examine
the effect of any cautionary instructions given by the trial judge
and the strength of the evidence suggesting guilt to see if they
attenuate the prejudice of the prosecutor's statement. Simpson,
853 F.2d at 1227; see also Goff, 847 F.2d at 165 (evaluating
"whether the jury would have found appellants guilty had it not
been for the prosecutor's improper argument," and considering the
on trial; he wanted to put Leo Ladoucer on trial; he wanted to put
Vince Lachelli on trial; Glen Mauldin))everyone, everyone was to be
on trial except him.
57
The prosecutor stated to the jury in his rebuttal closing argument
that they would have to disregard the testimony of the prosecution's witnesses
in order to believe Tomblin's testimony, and that doing so would require that
they believe that the government had conspired to "craft" its case.
42
degree of prejudice, the effectiveness of curative instructions,
and the weight of the evidence supporting guilt).
The trial court instructed the jury prior to opening
statements that the opening and closing arguments of both the
prosecutor and the defendant did not constitute either evidence or
instructions on the law. We presume that the jury follows the
instructions of the trial court unless there is an "overwhelming
probability that the jury will be unable to follow the instruction
and there is a strong probability that the effect is devastating."
United States v. Barksdale-Contreras, 972 F.2d 111, 116 (5th Cir.
1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1060, 122 L. Ed. 2d
366 (1993). Tomblin presents no convincing argument that the jury
did not follow the instruction given by the trial court. Also,
there was substantial evidence of Tomblin's guilt, including
witness testimony and the taped conversations. Therefore we
conclude that the trial court's instructions and the weight of the
evidence against Tomblin dissipated the potential prejudice of the
prosecutor's statements,58 and the error does not require reversal.59
E
Tomblin lastly argues that the district court erred when it
found that Mauldin occupied a sensitive government position and, as
58
See Lowenberg, 853 F.2d at 302 (approving similar cautionary
instruction regarding the function of the attorneys' opening and closing
arguments); cf. Carter, 953 F.2d at 1457 (approving district court's curative
instruction that prosecutor's questions do not constitute evidence).
59
See Blake, 941 F.2d at 341 (finding harmless error when remaining
evidence "more than sufficient to establish that any reasonable juror would have
to conclude that [the defendant] was not credible").
43
a consequence, applied an eight-level upward departure. "In the
appellate review of sentences, we examine factual findings subject
to the `clearly erroneous' standard . . . , and we afford great
deference to the trial judge's application of the sentencing
guidelines." United States v. Humphrey, 7 F.3d 1186, 1189 (5th
Cir. 1993).
Under the Sentencing Guidelines, "[i]f the offense involved a
payment for the purpose of influencing . . . any official holding
a high-level decision-making or sensitive position, [the base
offense level] increase[s] by 8 levels." United States Sentencing
Commission, Guidelines Manual, § 2C1.1(b)(2)(B) (1993). That a
position requires the exercise of some discretion alone does not
mandate finding that the possessor of that discretion occupies a
sensitive government position. See, e.g., United States v.
Stephenson, 895 F.2d 867, 877-78 (2d Cir. 1990) (affirming denial
of sensitive position finding where employee's discretion was minor
and lower-level). When the discretion includes some final
decision-making authority or involves substantial responsibility
for funds, however, the position can qualify under the Guidelines.
United States v. Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994)
(affirming finding of sensitive position for Department of Navy
employee who exercised considerable discretion in contract awards
and supervised other employees); United States v. Lazarre, 14 F.3d
580, 582 (11th Cir. 1994) (affirming finding of sensitive position
for INS employee who held discretion over parole decisions
44
regarding Haitian detainees).
Tomblin contends that, as a mere aide, Mauldin did not possess
the level of discretion or responsibility necessary to warrant the
application of the upward departure. We disagree. A senator's top
administrative aide holds a position of substantial influence,
because he often serves as the senator's functional equivalent.
See Gravel v. United States, 408 U.S. 606, 616-17, 92 S. Ct. 2614,
2623, 33 L. Ed. 2d 583 (1972) ("[I]t is literally impossible
. . . for Members of Congress to perform their legislative tasks
without the help of aides and assistants; . . . the day-to-day work
of such aides is so critical to the Members' performance that they
must be treated as the latter's alter egos . . . ."). Moreover,
Meyer testified that Mauldin's presence at a meeting signified
Hecht's direct interest in the outcome. Consequently, the district
court did not err in granting an eight-level upward departure in
sentencing Tomblin.
III
For the foregoing reasons, we VACATE Tomblin's conviction for
extortion (Count 3), VACATE his sentence on the extortion count,
REMAND for new trial on that count only, and we AFFIRM Tomblin's
convictions on all remaining counts.60
60
Because Tomblin received the same sentence on all counts to run
concurrently, our vacating his extortion conviction and sentence does not impact
his sentence on the remaining counts.
45