[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-8733
D. C. Docket No. 1:93-00357-CR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDRIC W. TOKARS, JAMES H. MASON,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Georgia
(September 6, 1996)
Before DUBINA and BLACK, Circuit Judges, and MARCUS*,
District Judge.
DUBINA, Circuit Judge:
_______________________
*Honorable Stanley Marcus, U.S. District Judge for the
Southern District of Florida, sitting by designation.
Appellants-defendants Fredric W. Tokars (“Tokars”) and James
H. Mason (“Mason”) (collectively, the “defendants”) appeal their
convictions for various violations of federal law. In addition,
Mason challenges his sentence. For the reasons that follow, we
affirm.
I. STATEMENT OF THE CASE
A. Procedural Background
On August 25, 1993, a federal grand jury returned an
indictment charging Tokars and Mason with various racketeering,
drug, and money laundering violations. The grand jury later
returned a superseding indictment charging Tokars with racketeering
conspiracy, 18 U.S.C. § 1962(d) (Count I); racketeering, 18 U.S.C.
§ 1962(c) (Count II); violence in aid of racketeering, 18 U.S.C. §§
1959(a)(1) and 2 (Count III); murder-for-hire, 18 U.S.C. §§ 1958
and 2 (Count V); conspiracy to possess with intent to distribute
cocaine, 21 U.S.C. § 846 (Count VI); money laundering, 18 U.S.C. §§
1956(a)(1)(B)(i) and 2 (Counts VII, VIII, IX, X and XI); and
conspiracy to launder money, 18 U.S.C. § 1956(g) (Count XIII).
Mason was charged in Counts I, II, IV (violence in aid of
racketeering, 18 U.S.C. §§ 1959(a)(3) and 2), VI, VII, VIII, IX, X,
XI, and XIII.
The defendants entered not guilty pleas and moved to change
venue based on pre-trial publicity. The district court granted the
defendants’ change of venue motions, and the trial was moved to
Birmingham, Alabama. After the government’s presentation of its
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case-in-chief, the court dismissed Count VII against Mason and
Counts VIII and IX against Tokars. The jury returned guilty
verdicts against Tokars and Mason on all remaining counts. Tokars
was sentenced to concurrent life sentences on Counts I, II, III,
and V. As to Counts VI, X, XI, and XIII, Tokars was sentenced to
97 months' incarceration on each count to be served concurrently
with each other and concurrently with the life sentences, as well
as a $400 special assessment. Mason was sentenced to 200 months'
incarceration on each count to be served concurrently, as well as
a $450 special assessment. The defendants then perfected this
appeal.
B. Factual Background
This case involves drugs, money laundering, torture,
kidnaping, and murder-for-hire. The case is best explained when
divided into two sections: the narcotics money laundering
enterprise and the murder of Sara Tokars (“Sara”).
1. Narcotics money laundering enterprise
At the trial, Jessie Ferguson (“Ferguson”) testified that he
and Julius Cline (“Cline”) were drug dealers in Detroit, Michigan.
In July of 1985, Ferguson moved to Atlanta, Georgia, where he met
Mason. Cline also moved to Atlanta, and he and Ferguson invested
$75,000 in drug proceeds in the VIP Club. Mason was the manager of
the club, and he was listed as an owner in order to obtain a liquor
license because Cline and Ferguson were “in trouble” with the
authorities in Detroit. Ferguson testified that Cline’s principal
source of cocaine was “Andrew.” Cline transported the cocaine from
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Miami, Florida, to Atlanta. Andre Willis (“Willis”) testified that
he obtained cocaine from Cline until Cline was murdered on July 25,
1992. Willis distributed the cocaine in Atlanta and Chattanooga,
Tennessee. According to Willis, Cline also obtained cocaine from
Al Brown (“Brown”), who was part owner of the Diamonds and Pearls
nightclub in Detroit. Willis testified that he and Cline received
and sold approximately twenty kilograms of cocaine per week.
According to Willis, Cline described his relationship with Mason as
follows: “[Mason] was just a front for the nightclubs because
[Ferguson] and himself had a criminal record, and they could not
get any liquor license in their name, so James Mason would be the
front for all the nightclubs.” R62-2059. According to Willis,
Cline owned several clubs, including the VIP, Traxx, the Parrot,
and Zazu’s, as well as the Park Place Beauty Salon.
Marvin Baynard (“Baynard”) met with Tokars in late 1986 to
discuss providing a legal defense to drug runner Dexter Askew
("Askew"). Askew had been charged with possession of cocaine that
had been provided by Baynard. Baynard informed Tokars that he sold
one-fourth to one-half a kilo of cocaine per week amounting to
between $5,000 and $10,000. Tokars requested a $10,000 retainer
fee and said he would help Baynard "legitimize" himself by
incorporating Baynard’s business. Tokars incorporated a business
which Baynard used with Alex Yancey (“Yancey”), Baynard’s associate
in the cocaine business. Baynard sold drugs from 1986 to 1989 and
obtained cocaine from Cline and Greg Johnson (“Johnson”) beginning
in 1987. Baynard recalled that Tokars often discussed offshore
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banks and had a blue book that explained how to set up an offshore
bank for $15,000. Baynard did not invest his drug money but
instead kept it as cash in his bedroom and, on Tokars’s advice,
kept the cocaine in another apartment under a different name.
Baynard testified that he introduced Johnson to Tokars so that
Tokars could launder some of Johnson’s drug money.
Murray Silver (“Silver”) first met Tokars when Tokars was an
assistant district attorney. After leaving the district attorney’s
office, Tokars shared office space with Silver from approximately
July 1986 to October 1989. Silver recalled a conversation with
Tokars about a booklet Tokars authored entitled Tax Havens and
Offshore Investment Opportunities. The booklet details Tokars’s
plan for laundering drug money. Tokars asked that Silver refer
some of his clients to Tokars. Tokars said that he was not worried
about the Internal Revenue Service ("IRS") because he intended to
leave no paper trail. Tokars told Silver that he had used this
process to help a client who was going through a divorce hide
$150,000 from his wife and the IRS by depositing it in his bank in
the Bahamas. Silver recalled that Tokars lectured to law
enforcement officials on the topic of money laundering. The
Director of the Georgia Police Academy testified that Tokars taught
courses in money laundering for the academy, as well as for the
Federal Law Enforcement Training Academy.
In late December of 1988, Mason, Cline, and Ferguson accused
Michael Jones (“Jones”) of stealing money from Mason’s home. Jones
testified that he went to Mason’s house where Cline closed and
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locked the door. Ferguson placed a 9-millimeter handgun on the
table and asked Jones whether he knew where the money was.
Ferguson then placed the handgun down Jones’s throat and threatened
to kill him. When Mason returned home, Jones recounted the meeting
to him. About thirty days later, Mason asked Jones to meet him at
the Park Place Salon. Mason then asked Jones to accompany him
home. Ferguson arrived at Mason’s home and instructed Mason to
leave. Mason left, and Ferguson proceeded to physically torture
Jones for two to three hours. Ferguson then put Jones in the
bathroom, but Jones escaped. Ferguson testified that he and Cline
would often keep large amounts of drug money at Mason’s home.
Mason told Ferguson that he thought that Jones had stolen the
money. Mason hired a private investigator who observed Jones
attempting to purchase fur coats and a new car. Ferguson testified
that he instructed Mason to get Jones to the house.
Mason and Cline, together with Jim Killeen, Bill Fraser, and
William Kohler, formed Zebra, Inc., and Zebra Management, Inc., to
operate a club called Dominique’s. Mason and Cline contributed
$20,000 to the operation but were later removed from Zebra’s due to
Cline’s reputation as a drug dealer. Mason and Cline then opened
Traxx. Ferguson testified that he invested $15,000 in Traxx and
that Cline invested $45,000.
Mark McDougall (“McDougall”), who had taken cocaine from
Mason, testified that he and Zane Carroll (“Carroll”) discussed
with Tokars their proposed investment in the Parrot nightclub.
McDougall and Carroll would own 51% of the club. Billy Carter
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(“Carter”) would obtain the liquor license due to McDougall’s
felony conviction. Tokars and Carter discussed in McDougall’s
presence that Cline was the silent partner and money man for Mason.
Tokars incorporated the Parrot Acquisition Corporation. The
shareholder and management agreement reflected Tokars as the club’s
attorney and Carter and Mason as subscribing to 40,000 and 60,000
shares of stock, respectively. Ferguson testified that Cline
invested $40,000 to $60,000 in the Parrot. When McDougall and
Carroll were not pleased with the investment return, McDougall
threatened Cline with a gun.
Linda Campbell (“Campbell”), who was employed at the Park
Place Salon, was assaulted by Mason. She employed an attorney and
filed suit against Mason, and her case was settled for $17,500, for
which Mason’s shares of stock in the Parrot were pledged as
collateral. Campbell’s attorney testified that Tokars represented
Mason and that it was Tokars’s idea to pledge the Parrot stock.
Campbell employed new counsel who demanded that the stock be
assigned to Campbell because Mason had defaulted on payment.
Tokars claimed that he was no longer the secretary of the
corporation, so a suit was filed against all of the officers and
shareholders, including Tokars, Mason, Cline, Carter, and Brown.
After Zebra, Inc., was evicted from Dominique’s for non-
payment of rent, Mason approached Douglas McKendrick (“McKendrick”)
claiming that he had an endorsement contract with Deion Sanders
(“Sanders”). Sanders testified that he met Mason through Willie
Harris (“Harris”). Sanders signed an agreement with Harris, who
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signed as President of Atlanta Entertainment Management, Inc. In
September of 1990, Tokars incorporated Atlanta Entertainment
Management, Inc., listing Mason, Cline, and Harris as its
directors. Tokars helped finalize the deal with Sanders and the
management agreement with McKendrick. Carl Tatum, an employee of
the club Deion’s, testified that he discussed with Mason the fact
that Cline was a cocaine dealer and that Mason knew Cline dealt
cocaine.
In 1988, Harris began selling cocaine for Cline as a middle-
man brokering transactions with other customers. In one day,
Harris received between $250,000 and $500,000. Harris would place
the cash, minus his percentage, in a safe at Cline’s apartment.
Harris once delivered cocaine to Mason at Cline’s request. Harris
later heard from Mason that the cocaine was intended for a woman in
Mason’s residential complex. In 1991, Harris was arrested on
cocaine charges. Mason paid Tokars $5,000 to help Harris. Tokars
filed affidavits at Harris’s bond hearing stating that neither
Mason nor Cline knew Harris to sell, distribute, possess, or
consume illegal drugs. However, this was after Harris had
delivered the cocaine to Mason and had conducted a substantial
cocaine business on behalf of Cline. After obtaining bond, Harris
met with Tokars, who advised him that he would be found guilty and
receive a substantial sentence unless he could "set someone up."
Tokars suggested setting up Cline, but Harris refused. Harris
testified that Tokars then said that Harris was right that he could
not set up Cline “because if you do Julius [Cline], it will role
8
[sic] down and get James [Mason] because everybody knows James
doesn’t have any money, and he gets his money from Julius.” R62-
1912.
Harris and Mason decided to open a new club, and Mason claimed
that he had secured $50,000 from Brown to open it. John Vara
(“Vara”) testified that through his corporation, JDV, he sold the
leasehold rights to Diamonds and Pearls to Mason for $25,000. The
closing was held at Tokars’s office in November of 1991. Vara was
introduced to Brown by Mason, who said that Brown was part of
management. Mason and Tokars used Atlanta House Clubs, Inc., as
the purchaser of the lease.
In the spring of 1992, Tokars introduced Eddie Lawrence
(“Lawrence”) to Mason at Diamonds and Pearls. Tokars also
introduced Lawrence to Cline, Willis, and Harris. Tokars told
Lawrence that Cline was a drug dealer and that Mason was a client
for whom he laundered drug money. Lawrence testified that Tokars
and Mason said that $500,000 was used to renovate Diamonds and
Pearls.
In 1992, Cline began receiving cocaine from Brown. At the
time, Cline was renovating Traxx, which was to be renamed the
Phoenix. Willis testified that Cline was angry with Mason due to
the loss of the Parrot. Cline asked Willis to invest $150,000 in
the Phoenix. Willis was to obtain the money from cocaine sales.
Cline told Willis that he “had a white friend that was an attorney
and judge that was advising him on how to invest his money in the
right way” and was helping him with the clubs. R63-2080.
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On August 5, 1992, a car carrying 115 kilograms of cocaine was
stopped in Amarillo, Texas. The Drug Enforcement Agency ("DEA")
airlifted the car to Atlanta, and the driver agreed to cooperate.
Following an intermediary’s arrest, the cocaine was delivered to
Brown, who was then arrested. A search of Brown’s car revealed a
business card identifying Brown and Mason’s association with
Peachtree Entertainment, weekly reports of Diamonds and Pearls, two
digital beepers, and $49,700 in cash. DEA agents later executed
two search warrants for Brown’s residence and found a money
counting machine, a bulletproof vest, digital beepers, and records.
Tokars represented Brown at an August 11, 1992, detention hearing.
Assistant United States Attorney Janis Gordon (“Gordon”) expressed
to Tokars that the government was interested in Brown’s
cooperation. Gordon noted that since Tokars had incorporated
Diamonds and Pearls,1 she mentioned to him that he might have a
potential conflict in representing Brown. Gordon said that if the
government attempted to seize the nightclub, Tokars might be called
as a witness.
Mason represented to the DEA and IRS agents that he was the
100% owner of Diamonds and Pearls and that Brown only served as
the “doorman” and handy man for the club. Mason was then
subpoenaed to produce all records of the club. When Tokars learned
1
Tokars had incorporated Diamonds, Inc., and Diamonds and
Pearls, Inc., identifying Mason as the sole director. Tokars also
incorporated Peachtree Entertainment Group, Inc., with Mason and
Brown as directors.
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about the subpoena, he referred Mason to another attorney. Tokars
later told AUSA Gordon that Brown had fired him.
The records of Diamonds and Pearls and Atlanta House Clubs,
Inc., were also being sought in connection with separate civil
litigation. James McCreary ("McCreary"), an attorney for
Twilights, Inc., requested that Tokars provide Twilights with
information about Atlanta House Clubs, Inc., and its operation of
Diamonds and Pearls. Contrary to Mason’s assertions to the DEA and
the IRS, Tokars claimed that Atlanta House Clubs, Inc., did not
exist, was defunct, and had no assets. Tokars said that although
the liquor license was obtained in the name Atlanta House Clubs,
Inc., the actual company was Diamonds, Inc., which Tokars claimed
was owned by Mason. Twilights sued Atlanta House Clubs, Inc., and
Mason and Cline for failing to pay the additional $50,000 required
for the purchase of Zazu’s. At the time of the default, Jeff
Ganek, Twilights’s attorney, advised his client to liquidate the
nightclub, but when he discovered a liquor license advertisement by
Atlanta House Clubs, Inc., for Diamonds and Pearls, he suggested
that the company attempt to collect the $50,000.
Tokars told McCreary that he thought Atlanta House Clubs,
Inc., had no assets but that he had just discovered some assets.
Tokars informed McCreary that Cline had used Atlanta House Clubs,
Inc., to operate another club, the Phoenix. Tokars suggested that
if Twilights would dismiss Mason from the lawsuit, Tokars and Mason
would help Twilights obtain a judgment against Atlanta House Clubs,
Inc. Tokars told McCreary that following Cline’s murder, members
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of his family were operating the Phoenix. As a result, Tokars
suggested that Twilights might be able to satisfy its claim through
Cline’s estate. Tokars told McCreary that Cline’s murder was drug-
related. Tokars represented that Zazu’s was Cline’s venture and
that Cline had been very upset with McCreary’s clients, even to the
point of wanting to murder one of them.
2. The Murder of Sara Tokars
During a political fundraiser reception, Tokars stated that
his wife Sara had recently been in his office working on his
accounts receivable. Sarah Suttler (“Suttler”), the Tokars’
neighbor, testified that Sara often discussed divorcing Tokars but
was afraid she would not get custody of their two sons. In the
fall of 1992, Suttler said Sara was elated and said “I can divorce
Fred now because I have the goods on him, and he’ll not get my boys
. . . I have found papers of income tax evasion.” R69-3671.
According to Suttler, Sara gave the information to a private
detective and she felt protected by this.
In 1991, Lawrence employed Yancey in the construction
business. Lawrence knew Yancey to be a cocaine dealer. Yancey
asked Lawrence for $20,000, but Lawrence, who did not have $20,000,
gave Yancey only $10,000 to purchase cocaine. Lawrence said that
they could re-sell the cocaine and make the remainder of the
$20,000. Lawrence advanced the money, but the plan failed. Yancey
then decided to produce counterfeit money in order to repay
Lawrence. The United States Secret Service ("Secret Service")
began investigating their activities. Lawrence testified that he
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and Yancey would pass counterfeit money by going to nightclubs,
buying drugs, and then reselling the drugs for legitimate money.
Yancey and Lawrence eventually became aware of the Secret Service
investigation.
Yancey introduced Lawrence to Tokars. Yancey and Lawrence
informed Tokars of their counterfeiting activities. Tokars
suggested that he could take the counterfeit money and distribute
it in the Bahamas, but the two declined. Lawrence hired Tokars,
but Yancey fled and was arrested in December of 1993. The Secret
Service confronted Lawrence, but he denied his involvement in the
scheme. Lawrence, accompanied by Tokars, agreed to go to the
Secret Service office where Lawrence took a polygraph test. Tokars
was told that Lawrence tested deceptive when asked about his
involvement in passing counterfeit money. Lawrence testified that
he and Tokars then began conducting a money laundering business.
The two used Lawrence’s construction business as a front and also
incorporated several other businesses that were used to launder
money. Lawrence solicited drug dealers by going to nightclubs.
Tokars advanced approximately $70,000 to Lawrence for operating
expenses. Tokars discussed with Lawrence how he used offshore
banks to launder money.
In late July or early August of 1992, Tokars asked Lawrence if
he would kill somebody. In mid-September, Tokars asked Lawrence to
kill his wife Sara because she wanted to divorce him and take
everything. In another discussion, Tokars told Lawrence that Sara
wanted the house and his money. Lawrence advised Tokars, “Let her
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have it,” saying that “he could always get that back.” R65-2700.
According to Lawrence, Tokars stated “that he worked too hard, he
went to school at night, and she never did anything. All she ever
did was spend his money, and that he wasn’t going to give it to
her. He would kill her first.” Id. During a later discussion,
Lawrence asked about Tokars’s children. Lawrence recalled that
Tokars said, “They will be alright. They will get over it. They
are young. They will get over it.” R65-2700-01. Lawrence
testified that Tokars “just wanted it done” and said that “she was
putting pressure on him and he wanted to kill her. That was what
he wanted to do, he wanted her dead.” R65-2701.
Tokars first indicated that the murder should occur in his
office because he could cover it up due to his influence in
Atlanta. Lawrence would not agree. Tokars then decided it should
happen in their home so it would look like a burglary. Tokars
offered to pay Lawrence $25,000 plus a portion of the life
insurance proceeds. In August of 1989, Tokars had increased the
life insurance proceeds on Sara from $250,000 to $1,750,000.
Tokars continued to pressure Lawrence to kill Sara, going so far as
to threaten to destroy Lawrence’s business if he would not comply.
Lawrence testified that Tokars said that he did not care who did
it. Lawrence contacted Curtis Rower (“Rower”) and offered him
$5,000 to commit the murder. Rower agreed. On the Monday or
Tuesday prior to Thanksgiving of 1992, Tokars informed Lawrence
that Sara would be going to Florida and that he wanted her killed
14
when she came back. Tokars was scheduled to be in Alabama meeting
with a prisoner at that time, so he would have an alibi.
Sara’s father testified that Sara and the two children drove
to Florida and arrived on the Tuesday before Thanksgiving and that
Tokars flew into Tampa the same day. Tokars returned home on
Saturday and requested that Lawrence meet him the next day.
Lawrence met Tokars at his law office, and Tokars informed Lawrence
that Sara had already left Florida and would arrive in Atlanta
around 8:00 or 9:00 p.m. Tokars checked into a Montgomery hotel
and called his answering service to leave the number where he could
be reached in case of an emergency. That same day, there were many
phone calls involving telephones associated with Tokars, Lawrence,
Sara’s father, and the Montgomery hotel.
The record demonstrates that Lawrence picked up Rower around
7:00 p.m. Rower was equipped with a sawed-off shotgun. Lawrence
left Rower at the Tokars residence and instructed him to kill a
white female about age forty. Lawrence drove to a neighboring
subdivision to wait. About two hours later, Lawrence saw Sara’s
white 4-Runner vehicle driving off the road. Rower got out of
Sara's vehicle and ran toward Lawrence. They then drove to Atlanta
because Rower wanted to buy some drugs.
Rower testified that when Sara arrived home, he made her get
back into her vehicle and leave to take him to Atlanta. Rower
claims that they pulled over, that Lawrence approached, and that
Lawrence grabbed the gun, which went off.
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Stipulated testimony indicated that Sara died from a gunshot
wound to the head delivered from a distance of approximately one
foot or less. Sara's two small children were in the vehicle at the
time of the murder.
Wilbert Humphries ("Humphries"), a money launderer, was in
custody in Montgomery, Alabama, in November of 1992. He was
surprised to receive a visit from Tokars on the Sunday after
Thanksgiving. At the jail, Tokars asked Humphries to sign some
papers. Humphries attempted to talk with Tokars about the case,
but Tokars “talked to me very brief like he was in a hurry or
something.” R66-3035. This meeting lasted only about ten minutes.
On the Monday following the murder, a cousin of Sara’s, Mary
Rose Taylor (“Taylor”), contacted Sara’s sister, Christine Ambrusko
(“Ambrusko”), asking her to find the papers of Tokars that Taylor
had asked Sara to copy. Taylor went to Ambrusko’s house, found the
documents, copied them, and delivered them to the police. These
records reflected off-shore bank accounts in the Bahamas and a
Class B licensed bank issued by Montserrat. Ambrusko testified
that Sara requested that she keep the documents in a safe place and
give them to the police if anything happened to Sara. According to
Ambrusko, Sara wanted to divorce Tokars but was concerned that he
would take the children. Ambrusko also said that Sara was “very
scared and intimidated.” R68-3556.
According to Sara’s sister, Gretchen Ambrusko Schaeffer
(“Schaeffer”), after the murder Tokars appeared “very anxious, and
he was making loud noises, kind of moaning and saying,