UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-20400
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN J. JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
October 31, 1995
Before WISDOM, HIGGINBOTHAM, and PARKER, Circuit Judges.
WISDOM, Circuit Judge.
The appellant, John J. Johnson, was indicted for agreeing to
rig bids on food service contracts, for making fraudulent
statements in a bid on a federal contract, and for conspiracy to
commit mail fraud. Johnson filed a motion to dismiss the
indictment, which the district court denied. At trial, Johnson was
convicted of bid rigging and mail fraud, but was acquitted of
making false statements on a federal contract. Johnson now alleges
error both in the conduct of the trial, and in the district court's
initial decision not to dismiss the indictment against him. For
the reasons that follow, we AFFIRM.
1
BACKGROUND
During the 1980's, Glazier Foods Co. (“Glazier”), White Swan,
Inc., and Sysco, Inc., were the three major food service
distributors in the Houston, Texas area. John Johnson, the
appellant, was employed by Glazier, and was responsible for
submitting that company's bids for school and hospital contracts.
Joseph Mobley performed this service for Sysco, and James Maurice
Johnson ("Maurice") did the same for White Swan.
In 1985, Mobley approached Johnson and asked him to rig
Glazier's bid for an upcoming contract. Johnson agreed, and the
two men subsequently rigged their bids for a number of other
contracts. In 1986, Maurice joined White Swan, and significantly
underbid both Sysco and Glazier on at least one contract during
that school term. As a result, Mobley and Johnson approached
Maurice about joining the bid rigging arrangement sometime in 1987.
Maurice agreed, and the three men rigged bids until late 1989 or
1990, when the Department of Justice ("the government") began
investigating their activities.
Several months into the investigation, Mobley agreed to
cooperate with the government. He met with government officials
ten to twelve times in 1990, and at their request, began to put
together a "bid book" of the bids he thought were rigged. Because
Mobley had no independent memory of when the conspiracy started,
and had previously erased from Sysco's records all of the direct
information about the conspiracy, Mobley created his bid books
solely from examining Sysco's profit margins on various accounts.
2
Based on this information, Mobley went before a grand jury and
testified that he and Johnson had conspired to rig bids from 1987
until the beginning of the government investigation.
Around the time Mobley began to work with the government, he
gave his personal attorney a box of materials that included a tape
recording of Johnson and himself agreeing to rig bids on several
school district contracts in the 1985-86 school term. Mobley's
attorney did not turn this tape over to the government until
November 1991.
At that time, Mobley listened to the tape with the government,
and determined that the conversation with Johnson took place in
July 1985. Based on the tape, Johnson altered his "bid book" to
reflect the 1985 bids. Mobley then reappeared before the grand
jury, and revised his testimony to say that his conspiracy with
Johnson started in 1985.
In March 1991, Maurice also entered into a plea bargain with
the government. Afterwards, Johnson called Maurice several times
to talk about the investigation. Each time, the two men discussed
Mr. Johnson's dissatisfaction with his counsel, and Maurice
frequently urged Johnson to enter a plea. When the government
learned that Maurice and Johnson were still in contact, they asked
Maurice to allow them to tape two phone calls to Johnson in an
attempt to determine what involvement other Glazier officials may
have had in the conspiracy. Government officials specifically
warned Maurice not to discuss Johnson's relationship with his
attorney in the two taped conversations, but Johnson raised the
3
subject each time. Maurice ignored government signals to change
the subject and urged Johnson to plead guilty. The government
terminated the second conversation when Johnson tried to set up a
three-way conversation with his attorney.
Neither conversation produced any evidence about the
conspiracy, and the tapes were not used either to obtain the
indictment or at trial. Johnson did not enter a plea, and retained
his attorney through the trial and appeal process.
On July 7, 1992, a grand jury returned a three count
indictment against Johnson, alleging that he took part in one
continuous conspiracy to arrange bids from 1985 to 1990. The
indictment charged him with one count of arranging to rig bids, one
count of filing a false statement on a federal contract, and one
count of conspiring to commit mail fraud.
Johnson filed a motion to dismiss the indictment on the
grounds that the government's participation in the two telephone
calls between Maurice and Johnson interfered with Johnson's
relationship with his lawyer. The district court denied the
motion, and the case went to trial.
At trial, over Johnson's objection, the government introduced
the 1985 tape of Johnson and Mobley conspiring to rig bids. At the
end of evidence, Johnson moved for a judgment of acquittal, arguing
that the tape proved a separate conspiracy from the one proved by
the rest of the evidence, thus creating a fatal variance with the
single conspiracy charged in the indictment against him. Johnson
also asked the district court to instruct the jury on his theory of
4
multiple conspiracies. The district court denied both motions, and
the jury convicted Johnson of arranging to rig bids and of mail
fraud, but acquitted him of making a false statement on a federal
contract.
Johnson now appeals his conviction on four grounds. First, he
maintains that the district court should have dismissed the
indictment against him because the government's pre-indictment
conduct allegedly interfered with his attorney-client relationship.
Second, Johnson argues that the 1985 tape of himself and Mobley
should have been excluded from evidence because it was unreliable
and had a suspect chain of custody. Third, Johnson maintains that
the district court should have granted his motion for a judgment of
acquittal on the grounds of a fatal variance between the indictment
and the proof at trial. Finally, Johnson argues that the district
court erred by not instructing the jury on the possibility of
multiple conspiracies. We consider each of these arguments in
turn.
I.
Johnson maintains that the government violated his Fifth
Amendment due process rights by initiating and taping the phone
calls in which Maurice disparaged Johnson's lawyer and urged
Johnson to plead guilty. The decision to dismiss a case on this
basis is a question of law that is reviewed de novo by this court.1
Government misconduct does not mandate dismissal of an
1
United States v. Graves, 556 F.2d 1319, 1322 (5th Cir.1977),
cert denied, 435 U.S. 923 (1978).
5
indictment unless it is "so outrageous" that it violates the
principle of "fundamental fairness" under the due process clause of
the Fifth Amendment.2 Such a violation will only be found in the
rarest circumstances.3 We find that the government conduct in this
case did not reach such an extreme level.
The evidence shows that the government did not intend to be a
part of conversations regarding Johnson's attorney, and took
precautions against such discussions. Agents instructed Maurice
not to discuss Johnson's attorney, and signaled him to change the
subject when Johnson brought up the topic. An agent terminated the
second call when Johnson attempted to call his attorney and have
him speak to Maurice. Government conduct was not so outrageous
that this court must dismiss the indictment.
Johnson also suggests that the district court should have
dismissed the indictment against him because the government's
conduct violated the Texas State Bar Rule and the American Bar
Association Model Rule that prohibits a prosecutor from contacting
someone known to be represented by an attorney. Such professional
disciplinary rules do not apply to government conduct prior to
indictment, however, and certainly do not apply to the
indiscretions of a non-attorney government informant.4 Thus,
Johnson’s argument is unpersuasive.
2 United States v. Russell, 411 U.S. 423, 431-32 (1973).
3 United States v. Yater, 756 F.2d 1058, 1066 (5th Cir.), cert.
denied, 474 U.S. 901 (1985).
4 United States v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993).
6
Furthermore, there is no evidence that Johnson was
prejudiced by the government's actions. A defendant must show
prejudice to his ability to receive a fair trial before charges
will be dismissed.5 In this case, the recorded conversations were
not introduced at the trial. Johnson was not induced to cooperate
with the government, and has retained his lawyer throughout his
trial and appeal. He has presented no specific allegation of
ineffective representation or a factual explanation of how the
conversations with Maurice prejudiced his ability to present a
defense. Thus, the district court was correct to deny Johnson's
motion to dismiss his indictment.
II.
Johnson next appeals the district court's decision to admit
into evidence the tape of a 1985 conversation between Johnson and
Mobley, a co-conspirator. He argues that the tape was unreliable
and had an improper chain of custody.6
A district court's decision to admit evidence is reviewed for
an abuse of discretion.7 Any break in the chain of custody affects
5 United States v. Weeks, 919 F.2d 248, 254 (5th Cir. 1990),
cert. denied, 499 U.S. 954 (1991).
6 Johnson also argues that this tape was inadmissible because
it referred to what he calls the "1985 conspiracy," and thus was
irrelevant to the "1987 to 1990 conspiracy" proved at trial.
Johnson concedes that he did not make this argument to the court
prior to the admission of the tape recording. Thus, he may not
appeal the admissibility of the tape on this ground. Johnson did
preserve for appeal the issue of a fatal variance in the trial as
a whole, however. This issue will be discussed in the next
section.
7 United States v. Bermea, 30 F.3d 1539 (5th Cir. 1994), cert.
denied, 115 S. Ct. 1113 and 1825 (1995).
7
the weight, not the admissibility of evidence.8 Thus, if the
district court correctly finds that the government has made a prima
facie showing of authenticity, then the evidence is admissible, and
issues of authenticity are for the jury to decide.9
The record in this case clearly shows that the government made
the necessary showing of authenticity. Mobley testified that he
made the tape in 1985, placed the tape in a desk drawer, and forgot
about it until 1990, when he came under investigation. At that
time, Mobley gave the tape to his attorney, along with various
other materials. Mobley's attorney testified that he did not
discover the tape until he and Mobley were preparing for a
deposition in 1991. At that time, he immediately gave it to his
secretary. The secretary testified that the tape stayed in her
desk until she turned it over to the government in November of
1991. In addition, the government submitted expert testimony that
no one had tampered with the tape. Johnson has not challenged any
of this evidence. Thus, it is clear the government made a prima
facie showing of admissibility. The district court did not abuse
its discretion in admitting the tape into evidence.
III
Johnson next argues that the district court should have
granted his motion for a judgment of acquittal on the grounds of a
fatal variance between the inditcment and the proof at trial. He
8 Id.
9 United States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993),
cert. denied, 114 S. Ct. 720, 899, 1548 (1994).
8
maintains that Mobley’s tape proved one conspiracy in 1985 between
Sysco and Glazier Foods, and that the other evidence proved a later
conspiracy between all three companies beginning in 1987.
In reviewing a claim of fatal variance, this court will
reverse a conviction only if the evidence at trial varied from the
allegations of the indictment and the variance prejudiced the
defendant's substantial rights.10 Johnson’s appeal fails on both
grounds.
The evidence at trial was consistent with the single
conspiracy charged in the indictment. Although Mobley included
only post-1987 contracts in his "bid book" that he relied on during
testimony, Mobley testified that he had not prepared the same
documents for the contracts rigged prior to 1987, and that he had
destroyed other documentation regarding the conspiracy. He
testified, however, that the conspiracy began in 1985 with the Deer
Park School district, and that he and Johnson rigged at least that
one district from 1985 until 1990.
Johnson's only evidence that there was no such conspiracy in
the 1986-1987 school year is Maurice's testimony that competition
was "fierce" in that year. Maurice was not a part of the
conspiracy at that time, however, and could only have been
discussing the situation with his company still making competitive
bids. In fact, Mobley testified that he suspected there was a
conspiracy between Sysco and Glazier in 1986-1987 because his own
10
United States v. Faulkner, 17 F.3d 1350, 1357 (5th Cir.),
cert denied, 114 S. Ct. 1861 and 2119 (1994).
9
bid on one contract came in "about 99 percent less" than those of
the other two companies, and because shortly thereafter Mobley
asked him to join the conspiracy.
Contrary to the suggestion of the appellant, the fact that
Maurice later joined the existing conspiracy does not turn the
single conspiracy into two separate conspiracies.11 Thus, the
evidence produced at trial sufficiently proved the single
conspiracy charged in the indictment.
Moreover, even if the evidence had proved two separate
conspiracies, Johnson was not prejudiced by the variance. A
defendant's rights are affected if the defendant is surprised at
trial or placed at risk of double jeopardy.12 Johnson has not made
either argument. Furthermore, because Johnson was at the center of
both conspiracies, there can be no fear of transference of guilt
between the two crimes.13 Thus, the district court properly denied
Johnson's request for a judgment of acquittal.
IV
Johnson's final argument is that the trial judge erred by not
instructing the jury on multiple conspiracies. This court reviews
the trial court's refusal to give a particular instruction for
abuse of discretion.14 A party appealing the refusal must show that
11
United States v. Atkins, 834 F.2d 426, 432 (5th Cir. 1987).
12
United States v. Robinson, 974 F.2d 575, 578 (5th Cir.
1992).
13
See United States v. Winship, 724 F.2d 1116, 1123 (5th Cir.
1984).
14
United States v. Lokey, 945 F.2d 825, 835 (5th Cir. 1991).
10
the requested instruction was substantially correct; that it was
not substantially covered by the trial court's instructions; and
that it concerned an issue so important that the omission seriously
impaired the defendant's ability to present a given defense.15
Johnson has not met this burden.
Johnson's proposed instruction would have incorrectly required
the jury to automatically acquit him if it found that multiple
conspiracies existed, without further instructing that it could
still convict Johnson if it found that he was a party to one of the
conspiracies charged in the indictment.16 The charge given by the
trial court adequately instructed the jury that it could not
convict Johnson unless the government proved beyond a reasonable
doubt that the defendant knowingly joined in the conspiracy
described in the indictment. Finally, because Johnson has failed
to show how the alleged fatal variance prejudiced his substantive
rights, Johnson's defense could not have been seriously impaired by
the district court's refusal to give the proposed charge. The
district court therefore correctly refused to instruct the jury on
Johnson's multiple conspiracy theory.
CONCLUSION
For the foregoing reasons, we AFFIRM the conviction against
John Johnson.
15
United States v. Broussard, 987 F.2d 215, 223 (5th Cir.
1993).
16
United States v. Hernandez, 962 F.2d 1152, 1160 (5th Cir.
1992).
11