Filed: Sep. 06, 1996
Latest Update: Feb. 21, 2020
Summary: [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
Summary: [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 o..
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[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
2
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
3
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
4
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
5
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
6
(“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
7
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.
9
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.
10
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
11
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
12
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
13
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.
15
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, Id.
On Christmas Eve, Tokars failed to go on a family outing to
Busch Gardens. As time passed without contact from Tokars, Dr.
Ambrusko became worried. He went to look for Tokars and found him
unconscious in his hotel room. The police found a suicide note.
Tokars survived this suicide attempt.
II. ISSUES
The defendants raise the following issues on appeal:
1. Whether the district court erred in denying the defendants’
challenges to the government’s use of peremptory strikes.
2. Whether the district court erred in admitting the statement
Rower made at his bond hearing.
18
3. Whether the district court erred in admitting hearsay
statements made by Sara.
4. Whether Tokars was prejudiced by misrepresentations regarding
the polygraph exam and the failure to produce the exam.
5. Whether Tokars had the opportunity to cross-examine Lawrence.
6. Whether the district court erred in denying Tokars’s motion to
suppress evidence seized from Tokars’s residence.
7. Whether the district court abused its discretion in its
admission of various items of evidence.
8. Whether the jury charge on Count V was proper.
9. Whether sufficient evidence supports Mason and Tokars’s
convictions.
10. Whether the district court erred in denying Mason’s motion for
a new trial.
11. Whether the district court properly permitted the jury to find
that Tokars committed racketeering act nine.
12. Whether the district court abused its discretion in moving the
trial to Birmingham, Alabama.
13. Whether the district court erred in granting only one
continuance of the trial.
14. Whether the district court abused its discretion in denying
Mason’s motion for severance from Tokars.
15. Whether cross-examination of Ambrusko was properly limited.
16. Whether the prosecutor engaged in misconduct.
17. Whether the district court properly refused Tokars’s theory-
of-the-case charges.
18. Whether the district court violated Tokars’s due process
rights by prohibiting comments by the attorneys on dismissed
charges.
19. Whether the references to violence and fear and other
prejudicial evidence denied Tokars a fair trial.
20. Whether Mason was properly sentenced.
21. Whether this court’s limitation of Tokars’s brief denied him
the effective assistance of counsel or due process on appeal.
19
III. STANDARDS OF REVIEW
A district court’s findings regarding whether a peremptory
strike was exercised for a discriminatory reason largely involves
credibility determinations and is therefore entitled to great
deference. See Batson v. Kentucky, 476 U.S. 79, 98 n.21, 106 S.
Ct. 1712, 1724 n.21,
90 L. Ed. 2d 69 (1986). Thus, we review a
district court’s finding in this respect only for clear error. See
Hernandez v. New York,
500 U.S. 352, 364-65,
111 S. Ct. 1859, 1868-
69,
114 L. Ed. 2d 395 (1991) (plurality);
id. at 372, 111 S. Ct.
at 1873 (O’Connor, J., concurring) (agreeing with the plurality
that district court’s finding should be reviewed for clear error);
United States v. Alston,
895 F.2d 1362, 1366 (11th Cir. 1990).
This court reviews a district court's evidentiary rulings for
abuse of discretion. United States v. Walker, 59 F.3d 1196, 1198
(11th Cir.), cert. denied, ___ U.S. ___,
116 S. Ct. 547,
133 L. Ed.
2d 450 (1995).
We review findings of fact on a motion to suppress evidence
for clear error; the district court's application of the law to
those facts is subject to de novo review. United States v. Diaz-
Lizaraza, 981 F.2d 1216, 1220 (11th Cir. 1993).
A challenge to a jury instruction presents a question of law
subject to de novo review. United States v. Chandler, 996 F.2d
1073, 1085 (11th Cir. 1993), cert. denied, ___ U.S. ___,
114 S. Ct.
2724,
129 L. Ed. 2d 848 (1994). We review a district court’s
refusal to give a requested jury instruction for abuse of
discretion. United States v. Maduno,
40 F.3d 1212, 1215 (11th Cir.
20
1994), cert. denied, ___ U.S. ___, 116 S. Ct. 123,
133 L. Ed. 2d 72
(1995).
Whether there was sufficient evidence to support a conviction
is a question of law subject to de novo review. United States v.
Keller, 916 F.2d 628, 632 (11th Cir. 1990), cert. denied,
499 U.S.
978,
111 S. Ct. 1628,
113 L. Ed. 2d 724 (1991). We view the
evidence in the light most favorable to the government with all
reasonable inferences and credibility choices made in the
government's favor.
Id.
A trial court’s denial of a motion for new trial is reviewed
for an abuse of discretion. United States v. Martinez ,
763 F.2d
1297, 1312 (11th Cir. 1985).
The granting of a motion for a change of venue is reviewed for
abuse of discretion. United States v. Williams, 523 F.2d 1203,
1208 (5th Cir. 1975).2
A denial of a motion for a continuance is reviewed for an
abuse of discretion and specific, substantial prejudice. United
States v. Bergouignan, 764 F.2d 1503, 1508 (11th Cir. 1985), cert.
denied,
484 U.S. 1044,
108 S. Ct. 778,
98 L. Ed. 2d 864 (1988).
Denial of a severance motion is reviewed for abuse of
discretion. United States v. Harper, 680 F.2d 731, 733 (11th
Cir.), cert. denied,
459 U.S. 916,
103 S. Ct. 229,
74 L. Ed. 2d 182
(1982).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to October
1, 1981.
21
Whether the trial court erred in limiting cross-examination is
reviewed for a clear abuse of discretion. United States v.
Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992). However, the
district court’s discretion in limiting the scope of cross-
examination is subject to the requirements of the Sixth Amendment’s
guarantee of the right of confrontation.
Id.
This court usually may only reverse a conviction based on a
prosecutor's remarks if those remarks are improper and prejudicial
to the defendant's substantive rights. United States v. Cannon,
41
F.3d 1462, 1469 (11th Cir.), cert. denied, ___ U.S. ___,
116 S. Ct.
86,
133 L. Ed. 2d 44 (1995).
The question whether a particular sentencing guideline applies
to a given set of facts is a question of law reviewed de novo.
United States v. Shriver, 967 F.2d 572, 574 (11th Cir. 1992). This
court reviews a trial court's determination of the quantity of
drugs used to establish a base offense level for sentencing
purposes under the clearly erroneous standard. United States v.
Taffe,
36 F.3d 1047, 1050 (11th Cir. 1994).
IV. ANALYSIS
Initially we note that many of the issues in this case are
subject to review for an abuse of discretion. Our review of the
record persuades us that the district court did not abuse its
discretion in moving the trial to Birmingham, Alabama; in granting
only one continuance of the trial; and in denying Mason’s motion
for severance from Tokars. Moreover, we conclude that Tokars's
arguments regarding issues nineteen and twenty-one are meritless.
22
Accordingly, we summarily affirm the district court’s disposition
of these issues.3 The remaining issues meriting discussion are
addressed infra.
A. J.E.B. v. Alabama ex rel T.B.
The defendants argue that the government purposefully
discriminated on the basis of gender in violation of J.E.B. v.
Alabama ex rel T.B., 511 U.S. 127,
114 S. Ct. 1419,
128 L. Ed. 2d
89 (1994), by exercising its peremptory challenges to remove men
from the venire. The government exercised its first ten strikes to
remove men, and after an objection by Tokars, the government struck
three men and three women. After the jury was struck, the district
court heard the defense challenge. When confronted by the defense
allegation that the government was impermissibly striking, the
government argued that there was a smaller number of women in the
venire and that the defense engaged in its own practice of striking
women.4 The government then conceded:
[W]e did not strike men just to strike men, nor did we
strike women just to strike women . . . In fact, the
defendants could have wiped out the entire sex of women
with their strikes and still had five to go, and as a
matter of principle, I think every sex should be
represented in a trial of this nature as should every
race be represented, and so we undertook a course of
action anticipating the defendants would do what they
3 See Eleventh Cir. Rule 36-1.
4
Although not relevant to our analysis, we find it
interesting that Tokars’s counsel intimated his own discriminatory
views during the challenge conference: “[M]y reading of the
Government’s strikes was that it was almost all straight males, and
then at the end out of the last four, I think they struck three
females, one black female and two regular females.” R56-531
(emphasis added).
23
did, which was strike almost in the exact opposite
proportion of women to men, because if you look at the
balance, the greater proportion of their strikes were
women.
R56-532-33. The government also argued that men had not been
declared to be a cognizable group for purposes of a Batson
challenge.
Regarding the challenge the district court stated:
I don’t think men do constitute a cognizable group for
Batson. There is a case in the Supreme Court presently
regarding whether women constitute a cognizable group.
The holding of the circuit[s] so far, the Fifth Circuit
has held that women do not constitute a cognizable group.
So have the Fourth and [the] Seventh. The Ninth Circuit
has gone the other way. I do not know of any circuit
decision that has held that men are a cognizable group .
. . I do not think the challenge is valid. However,
given the degree of novelty of the issue, Mr. Parker, do
you and Ms. Monahan want to place on the record what your
reasons were for striking the men that you struck?
R56-534-35. The government proceeded to state gender-neutral
reasons for each of its strikes. The district court overruled the
defendants’ objections, and the case proceeded to trial with a jury
composed of eight men and four women.
After the jury returned its verdict in this case, the Supreme
Court decided J.E.B., thereby extending Batson to gender.
Consequently, Mason moved for a new trial. The district court
conducted a hearing on the motion and determined that J.E.B. should
not be applied retroactively because it was not forecast by prior
decisions to the same degree as was Batson. The district court’s
conclusion regarding the retroactivity of J.E.B. was incorrect in
light of the Supreme Court’s decision in Griffith v. Kentucky, 479
U.S. 314, 328,
107 S. Ct. 708, 716,
93 L. Ed. 2d 649 (1987), which
24
mandates that “a new rule for the conduct of criminal prosecutions
is to be applied retroactively to all cases, state or federal,
pending on direct review or not yet final, with no exception for
cases in which the new rule constitutes a 500 U.S. 352, 358-59,
111 S. Ct. 1859, 1865-
66,
114 L. Ed. 2d 395 (1991) (plurality opinion). First, the party
challenging the peremptory strike must establish a prima facie case
that the prosecutor exercised the peremptory strikes for a
discriminatory reason. See
id. Second, if the prima facie case
25
has been established, the burden shifts to the proponent of the
peremptory challenge to articulate a gender-neutral explanation for
the strike. See id. The Supreme Court clarified that in order to
satisfy step two, “a 115 S. Ct. 1769, 1771,
131 L. Ed. 2d
834 (1995) (per curiam). Third, the trial court must ascertain
whether the opponent of the strike has carried his or her burden of
proving intentional discrimination.
Hernandez, 500 U.S. at 359,
111 S. Ct. at 1866. The district court’s findings on the issue of
discriminatory intent are entitled to great deference and are
reviewed for clear error.
Id., 500 U.S. at
364-65, 111 S. Ct. at
1868-69.
This case presents a situation of mixed motives. It is
apparent from the government’s statements following Tokars’s
challenge that gender was indeed a factor that was considered in
exercising its strikes. Tokars and Mason argue that this statement
constitutes a blatant admission of discriminatory intent that
negates the relevance of any other non-discriminatory reasons
offered. As such, Tokars and Mason contend that the government’s
actions violated J.E.B. This circuit, however, has recently joined
three other circuits in adopting dual motivation analysis for
purposes of Batson. See Wallace v. Morrison , 87 F.3d 1271 (11th
Cir. 1996) (applying dual motivation where prosecutor stated that
race was a factor considered in the exercise of peremptory strike);
United States v. Darden,
70 F.3d 1507, 1530-32 (8th Cir. 1995)
26
(applying dual motivation where prosecutor struck on basis of
youth, inexperience, and alleged young black female tendency “to
testify on behalf and be more sympathetic toward individuals who
are involved in narcotics”), cert. denied, ___ U.S. ___, 116 S. Ct.
1449,
134 L. Ed. 2d 569, and cert. denied, ___ U.S. ___,
116 S. Ct.
2567, ___ L. Ed. 2d ___ (1996); Jones v. Plaster,
57 F.3d 417, 421-
22 (4th Cir. 1995) (applying dual motivation but remanding to
district court for clarification of findings regarding whether the
strike was exercised for a discriminatory purpose and whether it
would have been exercised in the absence of the discriminatory
purpose); Howard v. Senkowski,
986 F.2d 24, 27-31 (2d Cir. 1993)
(applying dual motivation to prosecutor’s pre-Batson statements).
Dual motivation analysis grants the proponent of a strike the
opportunity to raise an affirmative defense after the opponent of
the strike has established a prima facie case of discrimination.
Wallace, 87 F.3d at 1274-75;
Howard, 986 F.2d at 30. In order to
prove this affirmative defense, the proponent of the strike bears
the burden of proving by a preponderance of the evidence that the
strike would have been exercised even in the absence of the
discriminatory motivation.
Wallace, 87 F.3d at 1275.5
After a careful review of the record, we conclude that the
district court’s findings that the government offered gender-
5
In Howard , the Second Circuit held that the dual
motivation analysis used by the Supreme Court in the constitutional
context should apply to Batson challenges. See, e.g., Village of
Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252,
270-71 n.21,
97 S. Ct. 555, 566 n. 21,
50 L. Ed. 2d 450 (1977); Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287,
97 S. Ct. 568, 576,
50 L. Ed. 2d 471 (1977).
27
neutral reasons for the strikes is not clearly erroneous. The
district court conducted a hearing during which it reviewed each of
the government’s reasons for striking the jurors and found them to
be gender-neutral. In making a finding of no pretext, the district
court in effect made the appropriate findings necessary for dual
motivation analysis. Applying dual motivation, we conclude that
the government would have exercised the strikes in the absence of
any discriminatory motivation.6
Finally, we note that resort to dual motivation analysis will
rarely be necessary. By now, no competent prosecutor or defense
attorney is unaware of the fact that strikes on the basis of race
or gender are prohibited. The procedural posture of this case is
unusual in that the law at the time of trial was unclear as to
whether Batson would be extended to gender. Unlike the respondent
in J.E.B., the government in this case expressed that it was not
striking men on the basis of stereotyping. Furthermore, both the
6
We acknowledge that in Purkett, the Supreme Court stated
that “the ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.”
Purkett, ___ U.S. at ___, 115 S. Ct. at 1771. However, we do not
perceive this language to prohibit the application of dual
motivation analysis. In Purkett, the Court faced the question
whether the proponent of the strike should be required to present
a plausible or persuasive reason for striking a juror in order for
the reason to be considered race-neutral. Id. The Court found
that such a requirement stopped the analysis too early and, in
effect, relieved the burden of persuasion regarding discriminatory
motivation from the opponent of the strike.
Id. As such, the
Court found that the proponent of the strike may offer an
implausible reason as long as it is not race-based on its face.
Id. Whereas the opponent of the strike in Purkett sought to avoid
its burden of persuasion in the face of an implausible explanation,
the dual motivation analysis provides an affirmative defense to the
proponent of the strike but does not take away the ultimate burden
of persuasion from the opponent of the strike.
28
prosecutor and defense counsel could have raised a J.E.B.
challenge. Moreover, the jury itself ultimately consisted of eight
men and four women. While the ultimate composition of the jury
does not nullify the possibility of gender discrimination, it is a
significant factor in the highly deferential review we afford the
district court’s conclusions. See United States v. Jiminez, 983
F.2d 1020, 1023-24 (11th Cir.), cert. denied,
510 U.S. 925, 114 S.
Ct. 330,
126 L. Ed. 2d 276 (1993).
B. Rower’s Bond Hearing Statements
Tokars argues that the district court erred in admitting the
out-of-court testimony offered by Rower during his Cobb County bond
hearing under Federal Rule of Evidence 804(b)(3).7 At least
portions of the Rower bond hearing testimony were, in fact,
relevant statements made by Rower against his penal interest within
the meaning of Rule 804(b)(3). Moreover, because Rower was
unavailable to testify at trial, and because his statement
regarding Lawrence's offer of $5,000 to commit murder and his
7
Federal Rule of Evidence 804(b)(3) provides:
The following [is] not excluded by the hearsay rule
if the declarant is unavailable as a witness:
A statement which was at the time of its making so far
contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to
civil or criminal liability, or to render invalid a claim
by the declarant against another, that a reasonable
person in the declarant’s position would not have made
the statement unless believing it to be true. A
statement tending to expose the declarant to criminal
liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
29
statements admitting the kidnapping were made against his penal
interest and were corroborated by other evidence in the case, we
conclude that the statements were properly admitted.
If there was any error in the admission of the Rower
testimony, however, such error was harmless. None of the testimony
directly inculpated Tokars. The testimony was only relevant as to
Tokars's involvement in the kidnapping insofar as it demonstrated
that Sara Tokars was, in fact, kidnapped. However, the testimony
of Lawrence and Detective McEntyre, considered independent of
Rower's testimony, was more than sufficient to prove the fact that
Sara Tokars was kidnapped. Furthermore, the evidence crucial to
Tokars's guilt regarding the murder-for-hire scheme was that which
related to his dealings with Lawrence, not that which related to
Lawrence's dealings with Rower, the main subject of Rower's
testimony. Finally, although Rower's testimony may have been
corroborative, in part, of Lawrence's testimony, Tokars impeached
Lawrence on cross-examination, and Rower's testimony contradicted
Lawrence's in some respects. Thus, any corroboration of Lawrence's
testimony by Rower had a minimal effect on the jury's perception of
Lawrence's credibility.8
8
Tokars also argues that the district court erred in not
allowing him to introduce the entire statement under Federal Rule
of Evidence 106 (rule of completeness) and 806 (impeachment of
declarant). However, after the district court refused, Tokars’s
counsel asked instead to introduce only certain portions of the
statement, which the court allowed. After reviewing the record, we
are persuaded that the district court did not abuse its discretion
in limiting the introduction of the remainder of the statement.
Moreover, assuming arguendo that the district court erred, any
error was harmless.
30
C. Hearsay Statements of Sara
The government introduced through several witnesses statements
made by Sara regarding her state of mind and the course of conduct
with respect to certain documents. The government offered each of
the contested statements under one of two theories: “(1) to
demonstrate the state of mind of Sara Tokars, over the course of an
approximately three-year period, as to her intent to divorce Tokars
and to show how the evolution of her state of mind over that period
provided a motive for Tokars to scheme to murder her; and (2) to
demonstrate a course of conduct, most often that of various persons
relating to copies of certain documents found by Sara Tokars that
were incriminating as to Tokars and that eventually were turned
over to both state and federal law enforcement officials after the
death of Ms. Tokars.” Government’s Br. at 69. The government
argues that, with respect to the first theory, the statements fall
9
within Federal Rule of Evidence 803(3), and, pursuant to the
9
Federal Rule of Evidence 803(3) states as follows:
The following [is] not excluded by the hearsay rule, even
though the declarant is available as a witness:
A statement of the declarant’s then existing state of
mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory
or belief to prove the fact remembered or believed unless
it relates to the execution, revocation, identification,
or terms of declarant’s will.
31
second theory, the statements are not “hearsay” as defined in
Federal Rule of Evidence 801(c).10
Regarding the first theory, we conclude that, at least when
relevant to the motive to kill, evidence of the victim’s state of
mind is admissible under Federal Rule of Evidence 803(3). See
United States v. DiNome, 954 F.2d 839, 846 (2d Cir.) (statements
about victims’ existing and ongoing suspicions concerning
defendant’s exportation business relevant to show motive to kill),
cert. denied ,
506 U.S. 830,
113 S. Ct. 94,
121 L. Ed. 2d 56
(1992); United States v. Donley,
878 F.2d 735, 738 (3d Cir. 1989)
(statements showing that victim intended to move out of military
apartment and separate from defendant), cert. denied,
494 U.S.
1058,
110 S. Ct. 1528,
108 L. Ed. 2d 767 (1990). Tokars claims
that a homicide victim’s state of mind is not sufficiently relevant
to admit out-of-court statements of fear unless the defense is
self-defense, suicide, or accidental death, citing for this
proposition United States v. Kaplan,
510 F.2d 606 (2d Cir. 1974).
However, Kaplan involved possession with intent to distribute and
distribution of heroin, not homicide, and the declarant’s state of
mind was not an issue. Tokars knew of the change in Sara’s state
of mind when he asked Lawrence to kill her. The fact that she
wanted to divorce him and take all of his money is what apparently
10
Federal Rule of Evidence 801(c) provides: “ 885 F.2d 1529, 1536 (11th Cir. 1989) (en banc),
polygraph evidence may be admitted to impeach or corroborate
testimony of a witness at trial within the court’s discretion, so
long as the opposing party has adequate notice of the evidence and
an opportunity to secure its own polygraph. During his opening
statement, Tokars claimed that his relationship with Lawrence was
that of a businessman investing in a rising entrepreneur. Tokars
acknowledged the existence of the polygraph test and in fact
consented to the test. The polygraph was not introduced to prove
33
Brady12 or Giglio13 material in the results of the polygraph, which
was administered to Lawrence to enable him to enter the Witness
Protection Program. Counsel for Tokars then asked for the
questions that were asked of Lawrence, and the government disclosed
these two questions: “Do you have any specific plans to locate or
harm another witness in the program? Do you have any specific plans
to intimidate or threaten another witness in the program?” R64-
2561. In its brief, the government concedes that one could
reasonably infer from its disclosure of only two questions that in
fact only two questions were asked. On cross-examination, Lawrence
indicated that he was asked six or seven questions and in response
to questions gave the impression that he was polygraphed regarding
the truthfulness of his testimony about Tokars. Tokars charged
that Lawrence was lying about the number of questions but then
discovered that there were in fact more than two questions. The
district court ordered the government to produce the entire list of
questions. The court concluded that it had no opinion as to
whether Lawrence had intentionally lied; however, the court
expressed concern over the matter of giving the jury the impression
that Lawrence had been polygraphed regarding his testimony about
that Lawrence told the Secret Service the truth, but to prove that
Lawrence had been deceptive and that Tokars was so informed. Thus,
we see no error in the admission of the polygraph exam. However,
even assuming that the admission was erroneous, any error was
harmless.
12
Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed.
2d 215 (1963).
13
Giglio v. United States, 405 U.S. 150,
92 S. Ct. 763,
31
L. Ed. 2d 104 (1972).
34
Tokars. The district court resolved the issue by allowing the
government, over objection, to read a statement to the jury
confirming that Lawrence was given a polygraph exam before entering
the Witness Protection Program, but which stated that he was never
asked any questions regarding whether his testimony at trial was or
would be truthful.14 We are persuaded that the district court
corrected any possible error by allowing the government to inform
the jury that Lawrence was not questioned during the polygraph
examination about his testimony regarding Tokars.15
E. Opportunity to Cross-Examine Lawrence
Tokars claims that he was "deprived of a thorough cross-
examination of Lawrence due to the quashing of his subpoenas."
Tokars' Br. at 23-25. The State of Georgia provided Lawrence with
discovery, which included Tokars’s statements, witness statements,
and various records. Tokars sought pre-trial production of these
documents pursuant to a Federal Rule of Criminal Procedure 17(c)
subpoena. The district court found that the State of Georgia
14
The government stated to the jury:
On October 27, 1993, in connection with Mr. Lawrence’s
entry into the Bureau of Prisons Witness Protection
Program, he was given a polygraph examination. He was
never asked, nor did he ever answer any questions as to
whether his testimony in any trial was or would be
truthful. He was asked whether, in answering the
questions by the polygrapher, would he answer the
questions truthfully.
R71-4196.
15
We note that during closing argument, Tokars’s counsel
argued that Lawrence lied about the questions he was asked in the
polygraph examination.
35
provided Tokars with all discovery materials that were provided to
counsel for Lawrence and quashed the subpoena. The district court
gave additional reasons for its decision to quash the subpoena, but
did so in a sealed order because the discussion revealed Tokars’s
theory of defense. After reviewing the district court’s sealed
order and the record pertaining to this issue, we conclude that the
district court’s factual findings were not clearly erroneous and
that the district court did not abuse its discretion. See United
States v. Silverman, 745 F.2d 1386, 1397 (11th Cir. 1984).
F. Evidentiary Issues
1. Silver’s testimony
Tokars claims that the district court erred in allowing Murray
Silver to testify about Tokars’s request that Silver solicit drug
dealers for money laundering services and in admitting articles
about money laundering authored by Tokars as extrinsic act evidence
admissible under Federal Rule of Evidence 404(b). In denying the
defense motion in limine , the district court stated that the
articles would be relevant to show specific intent. After Silver’s
direct examination, the district court gave a limiting instruction
at the request of defense counsel.
Extrinsic act evidence is admissible if the evidence is
relevant to an issue other than the defendant’s character and if
the probative value of the evidence is not substantially outweighed
by its potential to prejudice the defendant. See United States v.
Costa, 947 F.2d 919, 925 (11th Cir. 1991), cert. denied,
504 U.S.
946,
112 S. Ct. 2289,
119 L. Ed. 2d 213, and cert. denied,
506 U.S.
36
929,
113 S. Ct. 360,
121 L. Ed. 2d 272 (1992). In addition, the
district court must provide a limiting instruction, as was the case
here. See
id. Although Tokars claims that he never denied “know
how,” he never entered into any written stipulation removing intent
as an issue for the jury. See
id. (“Because the defendants did not
affirmatively take the issue of intent out of contention by
stipulating that they possessed the requisite intent, the district
court did not abuse its discretion in admitting evidence of
unindicted extrinsic bad acts.”). Based on our review of the
record, we conclude that the district court did not abuse its
discretion because the evidence regarding money laundering was
relevant to the issue of intent and its probative value was not
substantially outweighed by the risk of undue prejudice to the
defendant.
2. Tax evasion
Tokars argues that the district court erred in admitting
extrinsic evidence of his alleged tax evasion. Based on our review
of the record, however, we conclude that the district court did not
abuse its discretion in this matter. In addition, assuming
arguendo that the district court erred, any error would be
harmless.
3. Murder scene photograph
Tokars contends that the crime scene photograph of Sara’s
murder should not have been admitted because its probative value
was outweighed by its prejudicial effect in violation of Federal
Rule of Evidence 403. We have reviewed the photograph and conclude
37
that the photograph of the murder victim was extremely relevant to
the crimes charged. Thus, this claim is meritless.
4. Homicides other than Sara
The defendants argue that evidence of the murders of Dante
Snowden (“Snowden”) and Ronnie Smith should not have been admitted.
The district court provided a limiting instruction that the
evidence was admitted for the limited purpose of explaining the
Detroit Police's determination that Ferguson was a suspect in
Snowden’s murder. These murders were relevant to explain why
Ferguson and Cline left Detroit. Tokars and Mason also object to
the admission of the murders of Cline and Brown’s brother Darryl
Hill. The evidence concerning these murders was relevant to
present a complete account of the story of the enterprise. See
United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992),
cert. denied,
506 U.S. 1068,
113 S. Ct. 1020,
122 L. Ed. 2d 166
(1993). Moreover, the testimony did not substantially prejudice
the defendants. Accordingly, we conclude that the district court
did not abuse its discretion.
5. Testimony of Agents Twibell and Davis
Tokars objects to the admission of testimony by agents Twibell
and Davis regarding out-of-court statements made by Billy Carter
and Greg Johnson. The government argues that Carter and Johnson’s
statements were admissible as co-conspirator statements under
Federal Rule of Evidence 801(d)(2)(E). Tokars argues that there
was no existing conspiracy at the time of the statements. Co-
conspirator statements are admissible so long as the conspiracy
38
existed, the declarant and the defendant were involved in the
conspiracy, and the statement was made in the furtherance of the
conspiracy. United States v. Van Hemelryck, 945 F.2d 1493, 1497-98
(11th Cir. 1991). We review the district court’s factual
determinations that the conspiracy existed and that the statement
was made in furtherance of that conspiracy under the clearly
erroneous standard. See United States v. Allison,
908 F.2d 1531,
1533-34 (11th Cir. 1990), cert. denied,
500 U.S. 904,
111 S. Ct.
1681,
114 L. Ed. 2d 77 (1991). Based on our review of the record,
we see no error in the admission of this evidence. Moreover, even
assuming that the district court erred, any error was harmless.
6. Birth certificates
Tokars argues that the district court re-opened the record in
order to allow the government to admit birth certificates to
establish the birth dates of Lawrence and Rower. However, the
government argues that the district court sustained a defense
hearsay objection to admitting the birth dates through a witness
and that the government requested a one-day continuance to obtain
the birth certificates. Based on our review of the record,
Tokars’s argument is meritless.
7. Cobb County police records
Tokars argues that the admission through a Cobb County police
officer of the contents of a sealed envelope — police reports,
handwritten notes, and a business card — was error. Our review of
the record leads us to conclude that the district court committed
39
no error. In addition, if any error was committed, such error was
harmless.16
G. Jury Charge to Count V
Tokars claims that the district court’s jury charge regarding
Count V, the murder-for-hire count, was modified by the court
without notice, and thus created a variance from the evidence
presented at trial. Tokars contends that the parties and the court
agreed to a jury instruction that would require the jury to make a
unanimous finding as to each of two phone calls made in furtherance
of the murder-for-hire scheme. During the charge conference, the
government consented to Tokars's requested instruction, but the
court, refusing to get involved in a discussion of the evidence
with the jury, concerned itself with clarifying the interstate
element of the offense. As previously mentioned, we review a
district court’s refusal to give a requested charge for abuse of
discretion. Maduno, 40 F.3d at 1215. Based on our review of the
record, we see no abuse of discretion concerning this issue.
H. Sufficiency of the Evidence
Tokars and Mason argue that there was insufficient evidence to
support their convictions and that the district court should thus
have granted their motions for acquittal. Whether there was
sufficient evidence to support a conviction is a question of law
subject to de novo review by this court. Keller, 916 F.2d at 632.
16
We conclude that Tokars’s argument regarding the district
court’s denial of his motion to suppress evidence seized from his
residence is meritless in light of his voluntary consent to the
search.
40
This court views the evidence in the light most favorable to the
government, with all reasonable inferences and credibility choices
made in the government's favor. Id. Our review of the record
persuades us that there was sufficient evidence to support the
convictions of Tokars and Mason. Thus, we will address only some
of the defendants’ contentions.
Count I charged a racketeering conspiracy involving a
narcotics money laundering enterprise. Mason and Tokars claim that
the evidence did not prove that there was one RICO enterprise or
conspiracy, arguing that at best, the record shows the existence of
two conspiracies — one involving Cline and the other involving
Brown. Tokars’s involvement consisted of his role in laundering
cocaine money and engaging in acts of violence. Mason participated
in the enterprise by laundering cocaine proceeds, distributing
cocaine, and aiding and abetting violence. “Whether the evidence
supports finding a single conspiracy is a question of fact for the
jury.” United States v. Valera, 845 F.2d 923, 928 (11th Cir.
1988), cert. denied,
490 U.S. 1046,
109 S. Ct. 1953,
104 L. Ed. 2d
422 (1989) (citation omitted). Our review of the record persuades
us that a reasonable jury could conclude that one RICO conspiracy
or enterprise existed.
Count VI charged Tokars, Mason, Ferguson, Hudson, and
unindicted co-conspirators with a conspiracy to possess with intent
to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
846. Tokars argues that the government’s contention that his money
laundering connected him to the drug conspiracy is erroneous.
41
Money launderers, however, play an integral and important role in
a drug enterprise. See United States v. Perez, 922 F.2d 782, 785-
86 (11th Cir.), cert. denied,
501 U.S. 1223,
111 S. Ct. 2840,
115
L. Ed. 2d 1009 (1991).17 Our thorough review of the record
persuades us that there was sufficient evidence of Tokars's and
Mason’s involvement in the cocaine conspiracy to support their
convictions.
Pursuant to 18 U.S.C. § 1956(a)(1)(B)(i), it is “illegal to
knowingly enter into a financial transaction involving the proceeds
of a 22 F.3d 1075, 1079 (11th
Cir. 1994). Mason was convicted of four substantive violations of
§§ 1956(a)(1)(B)(i) and 2 as charged in Counts VIII, IX, X, and XI.
Tokars was convicted of Counts X and XI. There was more than ample
testimony to prove that Mason knew that the money invested in the
nightclubs was drug proceeds. Thus, there was sufficient evidence
regarding Counts VIII, IX, and X. Likewise, we conclude there was
sufficient evidence of Tokars’s knowledge of and involvement in the
money laundering activities. Count XI involved Brown’s purchase of
a Lexus for his partner, Mason.18 Tokars’s culpability was premised
17
In addition, by testifying, Tokars bolstered the
government’s case because the jury was entitled to disbelieve his
testimony. See United States v. Brown, 53 F.3d 312, 314 (11th Cir.
1995), cert. denied, ___ U.S. ___,
116 S. Ct. 909,
133 L. Ed. 2d 841
(1996).
18
Mason contends that a prejudicial variance occurred
because the indictment indicated that the transaction transpired in
December of 1991 but testimony at trial indicated purchases before
42
on a Pinkerton19 theory. Mason’s culpability was premised on his
aiding and abetting Brown in the laundering of cocaine proceeds.
We are persuaded that the evidence is sufficient to sustain the
money laundering convictions.
Count XIII charged the defendants with conspiracy to launder
money in violation of 18 U.S.C. § 1956(g). Mason argues that there
was no money laundering conspiracy. He also claims that even
assuming that there was a conspiracy, there were multiple
conspiracies, or if there was only one conspiracy, that he was not
a member. Tokars claims that the evidence must show that the
conspiracy commenced after October 28, 1992, in order to avoid an
ex post facto problem and that the pled overt acts are insufficient
to prove a conspiracy. Our review of the record persuades us that
there was sufficient evidence to support these convictions.
Tokars argues that the superseding indictment changed the
charged offenses of murder in Count III to those of kidnaping, but
that, despite this redaction, the government focused on the offense
of murder, disregarding that the offense to be proved was
kidnaping. Further, Tokars contends that the government failed to
prove that Tokars had any involvement in kidnaping Sara. Despite
Tokars’s protestations, Sara’s kidnaping was a reasonably
foreseeable consequence of placing a contract “hit” on Sara’s life.
Tokars and Lawrence were co-conspirators in a cocaine conspiracy;
and after December. However, Mason fails to explain how this
prejudices him. Accordingly, we see no error.
19
Pinkerton v. United States, 328 U.S. 640,
66 S. Ct. 1180,
90 L. Ed. 1489 (1946).
43
therefore, it was reasonably foreseeable that originally unintended
acts of violence might occur. See United States v. Broadwell, 870
F.2d 594, 603-04 (11th Cir.) (kidnaping reasonably foreseeable in
a drug conspiracy), cert. denied,
493 U.S. 840,
110 S. Ct. 125,
107
L. Ed. 2d 85 (1989); United States v. Alvarez,
755 F.2d 830, 847-
49 & n.21 (11th Cir.) (murder reasonably foreseeable in a drug
conspiracy), cert. denied,
474 U.S. 905,
106 S. Ct. 274,
88 L. Ed.
2d 235 (1985), and cert. denied,
482 U.S. 908,
107 S. Ct. 2489,
96
L. Ed. 2d 380 (1987). Based on our review of the record, we
conclude that there was sufficient evidence to support the
conviction on this count.20
I. Jury Finding on Racketeering Act Nine
Tokars claims that the district court erred by allowing the
jury to find that he committed Racketeering Act Nine (Count XI),
under the vicarious co-conspirator liability theory of Pinkerton.
Tokars essentially argues that one must actually and not
derivatively possess the requisite specific intent to commit an
underlying predicate act in a RICO prosecution in order for that
predicate act to qualify as an “act of racketeering” for purposes
of 18 U.S.C. § 1961(5). However, we need not reach the merits of
this argument. Any error would be harmless, because the jury
specifically found that Tokars committed three other racketeering
acts that constituted a pattern of racketeering activity. Thus,
20
Mason also argues that the court erred in denying his
motion for a new trial based on insufficiency of the evidence.
However, based upon the above discussion, Mason’s argument is
meritless.
44
the two racketeering acts necessary to support the RICO conviction
still remained. See 18 U.S.C. § 1961(5).
J. Limitation of Cross-Examination of Ambrusko
During the cross-examination of Ambrusko, Tokars attempted to
show Ambrusko’s bias on her part by questioning her about evidence
of her bad relationship with Tokars. The district court granted
the government’s motion in limine precluding Tokars from examining
Ambrusko regarding certain evidence. The government contends that
the district court did not err in excluding the evidence because it
was impermissible bad character evidence which did not impeach the
credibility of the witness. Because Ambrusko’s bias against Tokars
was sufficiently established,21 we hold that the district court did
not abuse its discretion in limiting the scope of cross-
examination. In addition, assuming that the district court
erroneously excluded such evidence, any error was harmless.
K. Prosecutorial Misconduct
Mason alleges that the court erred in denying his motions for
a mistrial based on prosecutorial misconduct. During opening
statements the government suggested that the phrase “wolves in
sheep’s clothing,” R57-621-22, would play a role in the case
because the jury would be called upon to determine if the
defendants were wolves in sheep’s clothing or merely sheep. In
addition, the government used very vivid language to describe the
21
Ambrusko admitted during cross-examination that she and
Tokars did not share a good relationship. She also revealed that
she did not implicate Tokars until five days after her initial
interview with the police, and she admitted that she had been
contacted by the media and had been approached about a book deal.
45
torture of Michael Jones, relaying that Ferguson treated Jones
“like a piece of meat.” R57-634. Tokars and Mason also allege
that prosecutorial misconduct occurred during closing argument when
the government appealed to the conscience of the community and made
religious references. 22 Although the prosecutors may have gone a
bit overboard by bringing in two of the Ten Commandments and the
public policy against drugs, in light of the monumental evidence
against Tokars and Mason, we conclude that the prosecutor’s remarks
did not prejudice the substantial rights of the defendants. See
United States v. Blakey, 14 F.3d 1557, 1560 (11th Cir. 1994).
L. Jury Charges — Tokars’s Theory of the Case
Tokars contends that the district court erred in refusing to
give his “theory of the case” charges and in giving a willful
blindness instruction.23 The court originally rejected all of
22
The objectionable portion of the closing argument reads
as follows:
He is a wolf in sheep’s clothing, and you know it.
And so is James Mason. Wolves in sheep’s clothing, they
were masquerading and parading in our society as pillars
of the community, and this is why we have so many
problems in dealing with drugs. This is why we cannot
educate our children to have respect when members of the
community who are pillars are aiding and abetting the
sales of this product that is destroying our communities
whether they are in public housing or whether they are in
upscale neighborhoods.
He has violated laws of ages. Thou shalt not covet.
Thou shalt not kill.
He has violated the law of the United States. James
Mason has violated the law of the United States.
R76-5375.
23
Tokars’s requested charges included: (1) a charge
regarding IRS form 8300, a statement of law regarding disclosure of
“Foreign Accounts” on a 1040 tax return, and a charge that routine
46
Tokars’s so-called theory-of-the-case charges because they were
argumentative of the evidence. Upon reconsideration, the court
decided to give its own version of the first charge regarding
foreign accounts information on an IRS 1040 tax return. Our review
of the record persuades us that the district court did not abuse
its discretion.
Tokars also argues that the district court erred in giving the
willful blindness charge. Even if there is no evidence of
deliberate ignorance, reversal is not required if there is
overwhelming evidence of actual knowledge. See United States v.
Stone, 9 F.3d 934, 937 (11th Cir. 1993), cert. denied, ___ U.S.
___,
115 S. Ct. 111,
130 L. Ed. 2d 58 (1994). Our review of the
record convinces us that there was overwhelming evidence that
Tokars had actual knowledge. Therefore, we see no abuse of
discretion.
M. Due Process and Comments on Dismissed Charges
Tokars contends that the district court erred in refusing to
give his requested charge informing the jury that Counts VIII and
IX of the indictment had been dismissed and in refusing his request
that the court tell the jury what specific evidence pertaining to
these two counts should not be held against Tokars. The district
court refused to give the charges and instructed Tokars’s counsel
not to mention the dismissed counts to the jury. However, the
legal service does not constitute directing the affairs of an
enterprise; (2) a charge relating to the Canons of Ethics requiring
an attorney to represent his client zealously; and (3) a charge
regarding the disclosure obligation with respect to foreign
investments on a 1040 tax return.
47
district court provided the jury with a redacted indictment. The
district court correctly concluded that even if the counts were
dismissed, the jury could still consider evidence of those crimes
as evidence of the existence of the enterprise. See United States
v. Weiner , 3 F.3d 17, 22 (1st Cir. 1993) (evidence of dismissed
charges relevant to remaining RICO charges against defendant);
United States v. Gonzalez ,
921 F.2d 1530, 1546-47 (11th Cir.)
(testimony regarding uncharged acts permissible to establish
continuity of RICO entity), cert. denied,
502 U.S. 860,
112 S. Ct.
178,
116 L. Ed. 2d 140, and cert. denied,
502 U.S. 827,
112 S. Ct.
96,
116 L. Ed. 2d 68 (1991). Accordingly, there was no abuse of
discretion.
N. Mason’s Sentence
Mason argues that the district court erred in calculating his
base offense level by converting the $160,000 laundered into a
quantity of cocaine. The government argues that note 12 to
U.S.S.G. § 2D1.1 allows a court making a drug approximation to
consider the price generally obtained for the drug.
Application note 12 to U.S.S.G. § 2D1.1 states: “Where there
is no drug seizure or the amount seized does not reflect the scale
of the offense, the court shall approximate the quantity of the
controlled substance. In making this determination, the court may
consider, for example, the price generally obtained for the
controlled substance . . . .” Several other circuits have approved
the procedure of converting cash to the amount of cocaine necessary
to generate that amount of money. See United States v. Ferguson,
48
35 F.3d 327, 333 (7th Cir. 1994) (no error in estimating the amount
of cocaine needed to generate the amount of cash laundered), cert.
denied, ___ U.S. ___,
115 S. Ct. 1832,
131 L. Ed. 2d 752 (1995);
United States v. Rios,
22 F.3d 1024, 1027-28 (10th Cir. 1994) (when
cash seized and either no drug is seized or the amount seized does
not reflect the scale of the offense, conversion of cash to
quantity of drugs appropriate so long as cash is attributable to
drug sales that are a part of same course of conduct or common
scheme of conviction); United States v. Rivera,
6 F.3d 431, 446
(7th Cir. 1993) (approving conversion of seized currency to cocaine
equivalent as long as there is proof of the connection between the
money seized and the drug-related activity), cert. denied, ___ U.S.
___,
114 S. Ct. 1098,
127 L. Ed. 2d 411 (1994); United States v.
Jackson,
3 F.3d 506, 511 (1st Cir. 1993) (same); United States v.
Hicks,
948 F.2d 877, 882 (4th Cir. 1991) (same); United States v.
Stephenson,
924 F.2d 753, 764-65 (8th Cir.) (converting seized cash
to equivalent drug amount), cert. denied,
502 U.S. 813,
112 S. Ct.
63,
116 L. Ed. 2d 39, and cert. denied,
502 U.S. 916,
112 S. Ct.
321,
116 L. Ed. 2d 262 (1991). But see United States v. Gonzalez-
Sanchez,
953 F.2d 1184, 1187 (9th Cir. 1992) (conversion improper
where no factual finding that money was connected to the drug
business). We are persuaded by our sister circuits that hold that
money attributable to the drug transactions may be converted to the
equivalent amount of drugs for purposes of determining the drug
quantity.
49
Mason expresses the concern that in most cases there is
corroborative evidence of the amount of drugs involved, which he
claims was not available in this case. Admittedly, only one of the
above cases addresses a money laundering situation. However, the
evidence here clearly showed that Mason was involved in laundering
drug money. Consequently, it was reasonable for the district court
to convert the laundered money to an equivalent amount of cocaine.
We review the district court’s factual determination regarding the
quantity of drugs used to establish a base offense level for clear
error. United States v. Taffe, 36 F.3d at 1050. We conclude that
the district court did not clearly err. Furthermore, the district
court was extremely cautious and found a higher conversion figure
of $25,000 a fairer standard than the $20,000 conversion figure
suggested in the presentence report.
Mason also complains that the district court failed to make
the necessary factual findings to support the quantity of cocaine
attributed to him as required by United States v. Ismond, 993 F.2d
1498 (11th Cir. 1993). However, Ismond is not applicable to this
case, because it dealt with the determination of a defendant’s
liability for the acts of others. Mason was held accountable only
for cocaine money attributable to him. Nevertheless, even if
Ismond did control, we hold that the district court made sufficient
factual findings regarding the extent of Mason’s involvement to
support its calculation of the quantity of drugs involved.
Finally, Mason argues that the district court should have
sentenced him for Count VI and Racketeering Act Two using U.S.S.G.
50
§ 2S1.1 (laundering of monetary instruments) instead of U.S.S.G. §
2D1.1 (drug offenses). Mason contends that since no guideline has
been expressly promulgated for defendants convicted of a drug
conspiracy based solely on money laundering activity, he should
have been sentenced under the most analogous offense guideline.
However, there is a guideline expressly promulgated on this issue.
Mason was convicted of conspiring to violate 21 U.S.C. § 841.
Section 1B1.2(a) directs a district court that is deciding the
applicable guideline to “[d]etermine the offense guideline section
in Chapter Two (Offense Conduct) most applicable to the offense of
conviction.” Application Note 1 to § 1B1.2 refers to the Statutory
Index, and the Statutory Index for 21 U.S.C. § 846 refers to, among
other sections, U.S.S.G. § 2D1.1. Section 2D1.1 itself contains
the word “conspiracy” in its heading. The district court thus did
not err in applying § 2D1.1 when sentencing Mason.
V. CONCLUSION
All of the issues presented in this appeal are without merit.
The defendants received a fundamentally fair trial which is all the
Constitution requires. Accordingly, we affirm the defendants'
convictions and Mason's sentence in all respects.
AFFIRMED.
51
