Filed: Jun. 19, 1992
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FIFTH CIRCUIT _ No. 91-4472 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES G. STEPHENS, SR., Defendant-Appellant. _ Appeal from the United States District Court For the Western District of Louisiana _ (June 19, 1992) Before BROWN, GARWOOD and EMILIO M. GARZA, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Charles G. Stephens, Sr. was charged with one count of conspiracy to violate the Hobbs Act in violation of 18 U.S.C. § 1951, and four counts of subst
Summary: UNITED STATES COURT OF APPEALS FIFTH CIRCUIT _ No. 91-4472 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES G. STEPHENS, SR., Defendant-Appellant. _ Appeal from the United States District Court For the Western District of Louisiana _ (June 19, 1992) Before BROWN, GARWOOD and EMILIO M. GARZA, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Charles G. Stephens, Sr. was charged with one count of conspiracy to violate the Hobbs Act in violation of 18 U.S.C. § 1951, and four counts of substa..
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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
______________
No. 91-4472
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES G. STEPHENS, SR.,
Defendant-Appellant.
__________________________________________________
Appeal from the United States District Court
For the Western District of Louisiana
__________________________________________________
(June 19, 1992)
Before BROWN, GARWOOD and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Charles G. Stephens, Sr. was charged with one count of
conspiracy to violate the Hobbs Act in violation of 18 U.S.C. §
1951, and four counts of substantive violations of the Hobbs Act.
On appeal, Stephens argues that there is insufficient evidence to
support his conviction under the Hobbs Act, that the district court
abused its discretion in admitting coconspirator hearsay testimony
at trial, that the prosecution did not timely disclose tapes which
contained exculpatory evidence, and that the district court abused
its discretion in admitting evidence from his employer. Finding no
error, we affirm.
I
Stephens was indicted on August 15, 1989 and charged with one
count of conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951,1
and four counts of substantive violations.2 After a jury trial,
Stephens was found guilty on all counts. He unsuccessfully moved
for a judgment of acquittal and for a new trial.3
From 1982 through 1988, Stephens was employed by Guillory
Bonding Company as a bail bondsman in the Vernon Parish area of
Louisiana. He was also a town alderman in New Llano, Louisiana
from June 1986 through May 1988. According to the Indictment,
Stephens conspired with members of the New Llano police department
to extort money from travelers passing through the town, in
exchange for the dismissal or reduction of driving while
intoxicated ("DWI") or operating under the influence ("OWI")
charges, the return of the travelers' driver's licenses and the
release of their vehicles from impoundment, and obtaining bond
1
The Hobbs Act provides in pertinent part:
(a) Whoever in any way or degree obstructs,
delays, or affects commerce or the movement of
any article or commodity in commerce, by
robbery or extortion or attempts or conspires
so to do . . . shall be fined not more than
$10,000 or imprisoned not more than twenty
years, or both.
2
Stephens' alleged coconspirators were the Chief of Police
of New Llano, Louisiana, Flynn Kay, and three of his officers--
Tommy Sermons, Matthew Freeman and Roy Bartmess, Jr. Assistant
Chief of Police Elmo Roberts was also an alleged coconspirator.
These coconspirators were not indicted.
3
The district court sentenced Stephens on May 23, 1991 to
three years imprisonment on each of the five counts to run
concurrently. He was not assessed a fine or restitution, but was
required to pay a $250.00 special assessment.
-2-
without being jailed.4 This conspiracy centered around the New
Llano police department's traffic stops--the New Llano Chief of
Police required each police officer to make at least sixty stops a
month resulting in arrest for DWI or OWI.
The stops occurred mainly on six-tenths of a one-mile stretch
of Highway 171, which runs through the town of New Llano. Local
residents were rarely stopped--truck drivers, transients and
military personnel were stopped most often. After the individuals
were stopped, they were given a field sobriety test. If the
individual failed the test, he was arrested for DWI/OWI and other
traffic offenses.
When the vehicles were towed, they were almost always towed by
B & B Towing. Other towing companies were allowed little
4
Specifically, Count 1 of the indictment, dealing with a
conspiracy of the Hobbs Act, 18 U.S.C. § 1951, alleges:
CHARLES G. STEPHENS, Sr., . . . and others . .
. did knowingly, willfully and unlawfully
conspire to commit extortion . . . in that . .
. STEPHENS . . . (exercising authority and
control over the actions of members of the New
Llano Police Department), and others known and
unknown . . . did wrongfully use their
positions, defendant as a town Alderman, the
co-conspirators as members of the New Llano
Police Department, to unlawfully obtain,
attempt to obtain, and cause to be obtained in
connection with and in consideration for
dismissal or reduction of DWI/OWI charges,
towing contracts, returning of drivers'
licenses, release of vehicles from impoundment
and obtaining of bond without being jailed,
payment of money not due to them or their
office . . . from two owners of B & B Towing
Company and approximately 72 individuals
charged with DWI/OWI offenses, with their
consent, said consent being induced under
color of official right.
-3-
opportunity to tow such vehicles. For every vehicle that B & B
Towing towed, it made a "kickback" of $10.00 to the New Llano Chief
of Police.5 Once at the police station, most of the individuals
arrested had only the option of using Stephens of Guillory Bonding
Company to make bond arrangements. They were "booked" and remained
in the jail until bond arrangements were completed. B & B Towing
did not release any of the individuals' cars until Stephens
notified Bill Metlin, one of the owners of B & B Towing, that
Stephens had been paid for his bail bonding services.
The individuals apparently would pay the amount requested by
Stephens, and then they were permitted to leave. The standard fee
charged was $150.00 for three offenses.6 The total of the bonds
for three offenses was usually $1,000.00 ($500.00 for the DWI/OWI,
and $250.00 per other offense). The Government established that
each surety bond was represented by a power of attorney. The New
Llano Chief of Police required a separate power of attorney on each
offense, resulting in a total fee of $150.00 for the three bonds.
Stephens, however, did not adhere to this policy, but usually only
attached one power of attorney aggregating all three offenses,
which meant that he should have only charged ten percent--$100.00--
of the total bond. Stephens would not account for this cash, or
report less than the amount he actually received.
5
The indictment alleges that this amount was later increased
to $15.00.
6
These three offenses included: driving while intoxicated
or operating while intoxicated and either speeding, improper lane
usage or failure to obey a signal light.
-4-
II
Stephens argues that his convictions for conspiracy to commit
extortion in violation of the Hobbs Act, as well as his convictions
for the substantive convictions under the Hobbs Act, were not
supported by sufficient evidence. In reviewing a challenge to the
sufficiency of the evidence in a criminal case, it is not necessary
that the evidence exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of
guilt, provided that a reasonable trier of fact could find that the
evidence establishes guilt beyond a reasonable doubt. See United
States v. Hall, 845 F.2d 1281, 1283 (5th Cir.), cert. denied,
488
U.S. 860,
109 S. Ct. 155 (1988) (quotation omitted). We "review
the evidence in the light most favorable to the government, making
all reasonable inferences and credibility choices in favor of the
verdict." United States v. Evans,
941 F.2d 267, 271-72 (5th Cir.),
cert. denied, U.S. ,
112 S. Ct. 451 (1991) (citation omitted).
A.
Stephens was convicted of Count 1 of the indictment, which
alleged a conspiracy to commit extortion in violation of the Hobbs
Act.7 After trial, Stephens filed a "Motion For Judgment of
Acquittal and in the Alternative For A New Trial", alleging
insufficiency of the evidence to sustain the conspiracy conviction.
7
See supra note 4.
-5-
On appeal, he argues that the district court incorrectly denied
this motion.8
To convict for criminal conspiracy under 18 U.S.C. § 1951, the
jury must find an agreement between two or more persons to commit
a crime, and an overt act by one of the conspirators to further the
conspiracy. See United States v. Villarreal, 764 F.2d 1048, 1051
(5th Cir.) (citations omitted), cert. denied,
474 U.S. 904, 106 S.
Ct. 272 (1985); see also United States v. Stodola,
953 F.2d 266,
270 (7th Cir. 1992) (conspiracy to commit extortion involves
knowingly joining a combination or confederation of two or more
persons formed for the purpose of committing extortion by their
joint efforts) (citation omitted), petition for cert. filed (Apr.
6, 1992) . "Proof of a conspiracy does not require direct evidence
of an actual agreement between the co-conspirators, but may be
inferred from circumstantial evidence." United States v. Wright,
797 F.2d 245, 253 (5th Cir.) (citation omitted), reh'g denied,
804
F.2d 843 (5th Cir. 1986), cert. denied,
481 U.S. 1013,
107 S. Ct.
1887 (1987); see United States v. Di Carlantonio,
870 F.2d 1058,
1061-62 (6th Cir.) (question is whether a reasonable jury could
have found defendants conspired to extort money from individuals,
8
We apply the same standard of review to a challenge to a
denial of a post-verdict judgment of acquittal, claiming
insufficiency of evidence, as we do to claims of insufficiency of
evidence to support a conviction--we determine whether a reasonable
trier of fact could have found that the evidence establishes the
defendant's guilt beyond a reasonable doubt. See United States v.
Cardenas, 748 F.2d 1015, 1019 (5th Cir. 1984) (when reviewing post-
verdict judgment of acquittal based on sufficiency of evidence, we
determine whether a reasonable trier of fact could have found that
the evidence establishes guilt beyond a reasonable doubt), appeal
after remand,
778 F.2d 1127 (5th Cir. 1985).
-6-
and whether, if successful, this scheme would have affected
commerce by depleting the assets of an enterprise in interstate
commerce), cert. denied, 493 U.S. 933,
110 S. Ct. 323 (1989).
The evidence is this case amply indicates the existence
of a conspiracy. The New Llano Chief of Police had his officers
make a minimum of sixty stops per month for DWI/OWI offenses and
other traffic violations. B & B Towing did the majority of the
towing of these vehicles, despite the existence of other local
towing companies and a local ordinance that required the rotation
of wrecker services. For being allowed to do the towing, B & B
Wrecking Service paid the New Llano Chief of Police $10.00 per
vehicle, which was later increased to $15.00 per vehicle.
Stephens was good friends with the New Llano Chief of Police.
When the New Llano Chief of Police was not in the office, the
police officers were told to contact Stephens if they had any
problems. When one of the individuals was in jail for a traffic
offense, Stephens was almost always used as the bondsman. For each
person bonded by Stephens, a charge was made which exceeded the
amount Stephens reported to his employer, Guillory Bonding Company.
A reasonable trier of fact could find from the circumstantial
evidence that the New Llano Chief of Police and Stephens split the
unreported amount of money in some manner. In addition, Stephens
knew that B & B Towing was paying money to the Chief of Police and,
when B & B Towing collected bond money for Stephens, Stephens'
secretary would come and pick it up.
-7-
Stephens does not deny the existence of the conspiracy so much
as he argues that he was not a part of it and had no knowledge of
it. Specifically, he claims that he was not a participant in the
conspiracy between the Chief of Police and the B & B Towing, and he
contends that he did nothing wrong by collecting the money for bond
services. We disagree because the totality of the circumstances
involving Stephens indicates a common plan and purpose. See United
States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (participation
in a criminal conspiracy may be inferred from a development and a
collocation of circumstances) (citation omitted), cert. denied sub.
nom.,
444 U.S. 846,
100 S. Ct. 91 (1979), cert. denied sub. nom.,
440 U.S. 962,
99 S. Ct. 1508 (1979). Construing the evidence in
the light most favorable to the Government, we find that the
evidence is sufficient to support the jury's finding of a
conspiracy between Stephens and members of the New Llano police
department.
B.
Stephens argues that the Government failed to establish that
the conspiracy and acts of extortion affected interstate commerce.
He contends that the payment of kickbacks between the towing
company and the New Llano Chief of Police did not have any effect
on interstate commerce, and that a tenuous connection exists
between the payment of bonds for release from jail in New Llano,
Louisiana and interstate commerce.
"By statutory definition, in order for the extortion to
constitute a federal crime under the Hobbs Act, some connection
-8-
must be established between the extortionate conduct itself and
interstate commerce." United States v. Wright, 797 F.2d 245, 248
(5th Cir.), reh'g denied,
804 F.2d 843 (5th Cir. 1986), cert.
denied,
481 U.S. 1013,
107 S. Ct. 1887 (1987), citing 18 U.S.C. §
1951(a).9 The interstate commerce connection is determined on a
case-by-case basis.
Id. The impact on interstate commerce need
not be substantial to meet the statutory requirement; all that is
required is that commerce be affected by the extortion.
Id. at
248-49; see also
Wright, 804 F.2d at 844 (5th Cir. 1986) (Hobbs Act
requires only minimal impact on interstate commerce) (citations
omitted); United States v. Villarreal,
764 F.2d 1048, 1052 (5th
Cir.) (Hobbs Act only requires a minimal interference with
interstate commerce) (citation omitted), cert. denied,
474 U.S.
904,
106 S. Ct. 272 (1985).
Stephens' arguments are unconvincing. The highway on which
the cars were stopped and towed was six-tenths of a mile of U.S.
9
18 U.S.C. § 1951 provides in pertinent part:
(b) As used in this section-
* * *
(3) The term "commerce" means
commerce within the District of
Columbia, or any Territory or
Possession of the United States; all
commerce between any point in a
State, Territory, Possession, or the
District of Columbia and any point
outside thereof; all commerce
between points within the same State
through any place outside such
State; and all other commerce over
which the United States has
jurisdiction.
-9-
Highway 171, a major four-lane highway that runs north and south
through the western corridor of Louisiana. This highway provides
access to other highways that lead to Texas if one travels west,
and to Arkansas if one travels north. Testimony introduced at
trial indicates that most of the people who were stopped and had
their cars towed were not local residents, but individuals
travelling to other states. Accordingly, we find Stephens'
argument that interstate commerce was not affected to be without
merit.
C.
Stephens contends his convictions for the substantive
violations under the Hobbs Act were not supported by sufficient
evidence. To establish an offense under the Hobbs Act, the
Government must prove beyond a reasonable doubt that: (1) that the
defendant induced a person to part with property; (2) the defendant
acted knowingly and willfully by means of extortion; and (3) that
the extortionate transaction delayed, interrupted, or adversely
affected interstate commerce. See United States v. Snyder, 930
F.2d 1090, 1093 (5th Cir.), later proceeding,
946 F.2d 1125 (5th
Cir. 1991), cert. denied, U.S. ,
112 S. Ct. 380 (1991); see also 18
U.S.C. § 1951. "[E]xtortion under color of official right means
the wrongful taking by a public officer of money or property not
due to the officer or the office."
Snyder, 930 F.2d at 1093; see
also United States v. Wright,
797 F.2d 245, 250 (5th Cir.) ("A
conviction under the Hobbs Act may be sustained by a finding that
a public official has taken a fee, unlawfully, under color of his
-10-
public office, in return for performance or nonperformance of an
official act.") reh'g denied, 804 F.2d 843 (5th Cir. 1986), cert.
denied,
481 U.S. 1013,
107 S. Ct. 1887 (1987). "There is no
requirement that threat, force, or duress be proved when the
defendant is a public officer."
Wright, 797 F.2d at 250 (citation
omitted). "[T]he Government need only show that a public official
has obtained a payment to which he was not entitled, knowing that
the payment was made in return for official acts." Evans v. United
States, No. 90-6105,
1992 WL 107339 at *6 (U.S. May 26, 1992).
1.
Stephens contests his conviction on Count II of the
indictment10 on the grounds that Adams never had any knowledge of
Stephens' official capacity as a New Llano town alderman.
Furthermore, Stephens argues that he did not indicate that he could
have Adams' driver's license returned to him until after Adams
agreed to make a payment.
Adams' testimony, however, indicates that Stephens indicated
to him that, through his contacts, Stephens would get Adams'
10
Count II states:
[O]n or about July 17, 1986 . . . STEPHENS . .
. did knowingly, willfully and unlawfully
commit extortion, which extortion obstructed,
delayed and affected interstate commerce . . .
in that . . . STEPHENS . . . did unlawfully
seek, ask, solicit and receive a cash payment
of . . .($1,140.00). . . from Richard A.
Adams, which was not due . . . STEPHENS . . .
or his office, with the consent of Richard A.
Adams, said consent being obtained and induced
through wrongful use of fear of economic loss
and under color of official right . . . to
prevent prosecution of Adams on a charge of
Driving While Intoxicated . . . .
-11-
charges reduced or dismissed if Stephens was paid $1,040.00.11
Whether or not Adams knew what Stephens' official position was,
Adams believed that Stephens had the power to fix Adams' ticket.
Thus, Stephens was acting under color of official right and
committed extortion. See United States v. Dozier, 672 F.2d 531,
539-40 (5th Cir.) (noting Mazzei court finding that payments to
defendants induced by exploitation of lessor's reasonable belief
that defendant's position as state senator provided him with
control over state leases, and holding that defendant had induced
such belief from victims) (citation omitted), cert. denied,
459
U.S. 943,
103 S. Ct. 256 (1982);
Dozier, 672 F.2d at 542 (victim's
fearful state of mind is a crucial element in proving extortion;
state-of-mind evidence is admissible in a trial for extortion under
color of official right even though proof of direct coercion is not
11
Adams testified:
A. . . . [W]e met in the motel parking lot where I was
staying and he explained the situation or the offer that
he could make to me, basically, that he had a lawyer that
wasn't cheap, but would cost me six hundred dollars for
the lawyer, but this lawyer had some kind of connections
where the charges would be reduced.
Record on Appeal, vol. 7, at 1085-1086, United States of America v.
Charles G. Stephens, Sr., No. 91-4472 (5th Cir. filed Sept. 16,
1991) ["Record on Appeal"] (direct examination of Adams); id. at
1112 (cross examination of Adams):
A. What he told me is that if I turned the money over to
him that through whatever arrangements he had, that the
charges would be reduced, and I would get my license
returned. And then, therefore, I would not be required
to come back for a court appearance.
Adams paid Stephens the $1,040.00, and Stephens returned
Adams' drivers' license to him. Adams, however, was not prosecuted
for his traffic offenses, nor do the records of the Leesville clerk
of the court indicate the charges were ever pursued. See also
Government Exhibit 2-5, included in Record on Appeal (Clerk of
Court, City of Leesville notation indicating no paperwork ever
received from New Llano on Richard A. Adams).
-12-
required) (citations omitted); United States v. Rabbitt, 583 F.2d
1014, 1027 (8th Cir. 1978) ("The official need not control the
function in question if the extorted party possesses a reasonable
belief in the official's powers.") (citations omitted), cert.
denied, 439 U.S. 1116,
99 S. Ct. 1022 (1979); United States v.
Hall,
536 F.2d 313, 320 (10th Cir.) (extortion under color of
official right exists if power to determine issue is within scope
of accused's office and victim has a reasonable belief that he does
have power), cert. denied sub nom.,
429 U.S. 919,
97 S. Ct. 313
(1976); United States v. Braasch,
505 F.2d 139, 151 (7th Cir.
1974) (so long as the motivation for the payment focuses on the
recipient's office, the conduct falls within the ambit of 18 U.S.C.
§ 1951), cert. denied sub nom.,
421 U.S. 910,
95 S. Ct. 1561-62
(1975); United States v. Mazzei,
521 F.2d 639, 645 (3d Cir. 1975)
(state legislator violates Hobbs Act when payments to defendant
induced by exploitation of victim's reasonable belief that
defendant's position as state senator provided him with effective
control over state leases), cert. denied,
423 U.S. 1014,
96 S. Ct.
446 (1975) .
2.
Stephens contests his conviction on Count III of the
Indictment,12 asserting that Hill did not bargain for anything which
12
Count III of the Indictment charges:
[O]n . . . July 3, 1987 . . . STEPHENS . . .
did knowingly, willfully and unlawfully commit
extortion, which extortion obstructed, delayed
and affected interstate commerce . . . in that
. . . STEPHENS . . . did unlawfully seek, ask,
solicit and receive a cash payment of . . .
-13-
would result in having her charges reduced or dismissed. Stephens
argues that Hill thought she was paying the money as a fine for her
OWI offense. In the alternative, Stephens argues that the payment
was nothing more than a cash bond. Stephens also asserts that Hill
did not believe Stephens was acting under color of official right.
We do not agree with Stephens. As the parties agree, Hill's
testimony at trial does indeed indicate some inconsistencies and
confusion regarding the exact purpose of the money she paid to
Stephens. But rather than indicating that the transaction was on
the "up and up" as Stephens asserts, Hill's testimony indicates
that she was unfamiliar with the court system and the purpose of
and procedure for obtaining bonds. Contrary to Stephens'
assertions, the record indicates that Hill paid the money to
Stephens because she thought Stephens could take care of the
charges against her. That is why she paid Stephens the money--
because of his "good relationship" with the police department and
because he could "take care" of Hill's problems.13 Such actions
($500.00) . . . from Debra Irene Hill, which
was not due . . . STEPHENS . . . or his
office, with the consent of Debra Irene Hill,
said consent being obtained and induced
through wrongful use of fear of economic loss
and under color of official right, in that
said . . . ($500.00) . . . was given by Debra
Irene Hill in order to have the charge of
Driving While Intoxicated and Illegal Lane
Change reduced and/or dismissed when she
appeared in Court . . . .
13
Consider the following excerpts from Hill's testimony:
Q. What happened when Mr. Stephens showed up?
Did you talk to him about your bond and so on?
A. Yes, sir. He told me that his fee was
fifty dollars per charge, and then I began
-14-
indicate Hill paid Stephens the money because of his public office.
See United States v. Williams, 621 F.2d 123, 125-26 (5th Cir. 1980)
(payor testified that, if defendant had not been a school board
member, he would not have given defendant $4,000), cert. denied,
450 U.S. 919,
101 S. Ct. 1366 (1981), appeal after remand,
679 F.2d
504 (5th Cir. 1982), cert. denied,
459 U.S. 1111,
103 S. Ct. 742
(1983). Thus, we find a reasonable trier of fact could find beyond
a reasonable doubt that Stephens extorted money from Hill under
color of official right.14
talking to him about the situation about me
leaving town, and asked if there was any way
that this could be kept off my military record
and maybe charged to my post address. And he
said he would see what he could do, because he
had a good relationship going with the police
department.
Q. Okay. And did you have a hundred dollars
to give him?
A. Yes, sir.
Record on Appeal, vol. 8, at 1284-85 (direct examination of Hill);
id. at 1314 (re-direct examination of Hill):
Q. Now, Mr. Stephens also told you . . . he
told you he was going to take care of it, or
get the receipt, or whatever, is that correct?
A. That's correct.
* * *
A. I asked him about the court date after he
gave me the receipt for the five hundred
dollars cash that I had given him. And that's
when he told me don't worry about it, it was
taken care of.
14
See also Government's Exhibit 4, included in Record on
Appeal (Guillory Bonding Company records for 12/29/86-8/28/87 in
which Stephens did not report the $500.00 he received from Hill
after her 7/2/87 OWI offense) and Government's Exhibit 1-11,
included in Record on Appeal (New Llano Police Department Booking
book listing Hill's 7/2/87 offense).
-15-
3.
Stephens contests his conviction on Count IV of the
Indictment,15 arguing that neither Metlin or James P. Bigley, the
other owner of B & B Towing, were induced to hold vehicles until
bonds were paid to Stephens. Stephens also contends that Count IV
of the indictment alleges events taking place in 1984, and that
because he was not an alderman until 1986, he was not acting under
color of official right.
15
Count IV incorporates by reference paragraphs A.1. through
A.8. of the Indictment. Count 1, paragraph A.7. states:B & B
Towing was a company which, among other things, was in the business
of operating a wrecker service located in Leesville, Louisiana.
From the latter part of 1984 until approximately May, 1986, and
from February, 1987, until approximately December, 1987, B & B
Towing exercised almost exclusive rights to two and impound the
vehicles of persons arrested for DWI/OWI charges in the town of New
Llano.
Count IV continues:
At a date unknown to the Grand Jury but
sometime during the latter part of 1984 . . .
STEPHENS . . . did knowingly, willfully and
unlawfully commit extortion . . . in that . .
. STEPHENS . . . did unlawfully seek, demand,
ask, solicit and receive a promise and
assurance from William Metlin, owner and
operator of B & B that William Metlin would
not release impounded vehicles in his care and
custody until such time as the owners of said
vehicles paid . . . STEPHENS . . . money that
. . . STEPHENS had charged those individuals
in regard to bonds, which promise and
assurance was not due to . . . STEPHENS . . .
or his office, with the consent of . . .
Metlin, said consent being obtained and
induced through wrongful use of fear of
economic loss and under color of official
right, in that said promise and assurance was
given by . . . Metlin in order to continue
towing vehicles for the town of New Llano . .
. .
-16-
Stephens misreads Count IV.16 Count IV specifically
incorporates paragraphs A.1 through A.8 of Count I, and alleges:
(1) In the latter part of 1984, Stephens solicited Metlin's promise
not to release impounded vehicles in his care until such time as
the owners of the vehicles paid Stephens' charge in regards to bail
bonds (Count IV); 2) from the latter part of 1984 until May 1986
and from February 198717 until December of 1987, B & B Towing
exercised exclusive rights to tow and impound vehicles of
individuals arrested for DWI/OWI charges in the town of New Llano
(Count I, paragraph A.7); 3) Metlin's consent--obtained and induced
through wrongful use of fear of economic loss and under the color
of official right--was given in order to continue towing vehicles
for the town of New Llano (Count IV); and 4) between June 30, 1986,
until approximately April 24, 1988, Stephens served as an elected
alderman for the town of New Llano, Louisiana.
16
The four substantive counts (along with the one
conspiracy count) reveal a two-prong scheme to extort money; that
is, Stephens and Kay not only extorted money from drivers but,
concomitantly, extorted money from B & B Towing.
Counts II, III and V are examples of the first prong of the
extortion scheme--extortion of the drivers. In Count II, the
indictment alleges that on July 17, 1986, Stephens extorted $1,140
from Richard A. Adams under the color of official right. Count III
alleges that on July 3, 1987, Stephens extorted $500 from Deborah
Irene Hill under the color of official right. Count V alleges that
on December 28, 1986, Stephens extorted $1,000 from Thomas D.
Cupit, Jr., under the color of official right.
Although Count II, III and V focus on the first prong of this
extortion scheme--that is, the extortion of drivers on Highway
171--this scheme would not have been successful but for the second
prong of the scheme--that is, the extortion of Metlin and B & B
Towing, which is the focus of Count IV.
17
In August 1986, James P. Bigley took over Metlin's
business, and ran it until February 1987, at which time Metlin took
over his business again.
-17-
An indictment must be a "plain, concise and definite written
statement of the essential facts constituting the offense charged"
to satisfy Rule 7(c) of the Federal Rules of Criminal Procedure,
and this court has held that:
an indictment is sufficient if it [1] contains the
elements of the offense charged and [2] fairly informs a
defendant of the charge against him[,] and [3] enables
him to plead acquittal or conviction in bar of future
prosecutions for the same offense.
United States v. Hagmann, 950 F.2d 175, 183 (5th Cir. 1991),
quoting United States v. Stanley,
765 F.2d 1224, 1239 (5th Cir.
1985). Clearly, Count IV charges that Stephens' extortion of
B & B--although initiated in the latter part of 1984 when B & B
obtained exclusive rights to tow and impound vehicles for the town
of New Llano--continued and was legally consummated for the purpose
of 18 U.S.C. § 1951 during the period of 1986 through 1987 when
Stephens served as an alderman.
And this is exactly what the Government proved. Stephens knew
that Metlin was paying money to the New Llano Chief of Police, and
he knew that Metlin would not release vehicles that had been towed
until he had Stephens' approval, which was given after the person
whose car was towed had paid Stephens.18 Metlin knew that Stephens
18
Metlin testified as follows:
Q. And did there come a time when you
confirmed [to Stephens] that you were paying
[money to the Chief of Police]?
A. Yes, sir.
Q. Do you recall approximately when that was?
A. It would have been April or May, Sir?
[Q.] Of which year?
A. '87.
Record on Appeal, vol. 4, at 264-65 (direct examination of
Metlin); id. at 267-68.
-18-
and the Chief of Police were "real good friends" and Metlin
believed that Stephens could stop him from towing cars. A
reasonable trier of fact could find that, because Metlin was afraid
that he would not get any towing business if he did not, Metlin
paid the money to the Chief of Police and collected money for the
bond payment to Stephens;19 Metlin may also have believed that some
* * *
A. . . . we were told to hold vehicles, we
just marked hold on the bill.
Q. . . . . And who were you told by to hold
the vehicles?
A. By the bonding service, Mr. Stephens.
Q. And do some of those documents reflect, at
the bottom, that you indeed had collected
money for Mr. Stephens?
A. Yes, sir.
Q. And when you collected the money for Mr.
Stephens, what did you do?
A. The majority of times, his secretary would
come and pick it up.
Q. If you can recall, sir, were you allowed
to release vehicles to anyone if their bond
was not paid to Mr. Stephens?
A. If they hadn't paid their bond and a hold
had been put on the vehicle, and if they came
to pick it up, I would call the bonds office,
and if they had paid the bond to the lady
there or Mr. Stephens would say go ahead and
release it.
A. . . . . Did you ever have occasion to
release a vehicle without an individual's bond
being paid, after you had been told to hold
it?
A. No, sir.
19
See United States v. Westmoreland, 841 F.2d 572, 581 (5th
Cir.) (there is no requirement that threat, force, or duress be
proved when the defendant is a public officer) (citation omitted),
cert. denied,
488 U.S. 820,
109 S. Ct. 62 (1988); United States v.
Pattan,
931 F.2d 1035, 1039-40 (5th Cir. 1991) (requisite element
of extortion conveyed by jury instructions that required a showing
that the public officer knowingly took advantage of his office in
relation to the payor in order to obtain the consensual transfer of
property), petition for cert. filed (July 29, 1991).
-19-
of the money he was paying to the Chief of Police was for Stephens.
Furthermore, Metlin could believe that Stephens might stop him from
getting towing business from the town, so Metlin acceded to
Stephens' demands not to release the vehicles until Stephens was
paid.20
Although Stephens may contend that Count IV of the Indictment
may not be the most clearly drafted, Stephens was afforded the
protection of his rights at trial. Cf. United States v. Hagmann,
950 F.2d 175, 183-85 (5th Cir. 1991), petition for cert. filed
(Apr. 28, 1992) (Count V of indictment failed to allege an overt
act subsequent to act of travel, but missing element was charged in
other counts and reindictment and retrial would not afford
defendant any protection of his rights not afforded in first
20
Stephens appears to be arguing that he did not extort
"property" from Metlin within the meaning of the Hobbs Act. The
extorted property set forth in the indictment is Metlin's promise
and assurance not to release impounded vehicles in his care until
the vehicles' drivers had paid Stephens. If the promise was not
made, Metlin had the fear of losing the towing business from the
town.
The concept of property under the Hobbs Act has not been
limited to physical or tangible things; the right to make business
decisions and to solicit business free from wrongful coercion is a
protected property right. See United States v. Zemek, 634 F.2d
1159, 1174 (9th Cir. 1980) (victim's right to solicit business free
from threatened destruction and physical harm falls within the
scope of protected property rights under Hobbs Act) (citations
omitted), cert. denied sub nom.,
450 U.S. 916,
101 S. Ct. 1359
(1981); United States v. Santoni,
585 F.2d 667, 672-73 (4th Cir.
1978)(property extorted was the right of victim to make a business
decision free from outside pressure wrongfully imposed), cert.
denied,
440 U.S. 910,
99 S. Ct. 1221 (1979) ; United States v.
Nadaline,
471 F.2d 340, 344 (5th Cir.) (extortion involved
concerned business accounts and unrealized profits from those
accounts; such intangible property is included within rights
protected by Hobbs Act) (citation omitted), cert. denied,
411 U.S.
951,
93 S. Ct. 1924 (1973)
-20-
trial); United States v. Alexander, 850 F.2d 1500, 1504 (11th Cir.
1988) (any variance between dates alleged and dates proved will not
trigger reversal as long as the date proved falls within the
statute of limitations and before the return date of the
indictment) (quoting United States v. Harrell,
737 F.2d 971, 981
(11th Cir. 1984), cert. denied,
496 U.S. 1164,
470 U.S. 1027,
105
S. Ct. 923 (1985)) (citation omitted), reinstated in part by
888
F.2d 777 (11th Cir. 1989), cert. denied, __U.S.__,
110 S. Ct. 2623
(1990).
4.
Stephens contests his conviction on Count V of the
Indictment,21 asserting that the evidence does not show that he
acted under color of official right, and that the evidence does not
show that the payment was made to prevent prosecution of a DWI
charge.
Again, Stephens mischaracterizes the evidence. The evidence
shows that Cupit was stopped on a DWI/OWI charge, and, after paying
Stephens $150.00 for bond, Cupit paid Stephens another $1,000.00.
Cupit testified that the $1,000.00 was paid to Stephens to "take
21
Count V of the Indictment alleges:
[O]n . . . December 28, 1986 . . . STEPHENS .
. . did knowingly, willfully and unlawfully
commit extortion . . . in that . . . STEPHENS
. . . did unlawfully seek, ask, solicit and
receive a cash payment of . . . ($1,000) . . .
from Thomas D. Cupit, Jr., which was not due .
. . STEPHENS . . . or his office, with the
consent of Thomas D. Cupit, Jr., said consent
being obtained and induced through wrongful
use of fear or economic loss and under color
of official right . . . .
-21-
care" of these charges.22 Cupit asked for reassurance that nothing
would happen to him, and Stephens said he did not "have to worry
about nothing." Cupit understood that the $1,000 he paid to
Stephens would "wipe everything clean like it never happened."
Stephens then reassured Cupit that Stephens' "friend" would take
care of Cupit's problem.
In addition, the records from Guillory Bonding Company for
this period show that Stephens did not report the money.23 Cupit
was not prosecuted on these charges, and the records from the clerk
of the court of the City of Leesville indicate that no paperwork
22
In particular, Cupit testified:
Q. [D]o you recall explaining to Mr. Stephens
that you were concerned about the OWI/DWI
ticket?
A. Yes, sir.
Q. Was that because of your past record?
A. Yes, sir.
Q. And what did Mr. Stephens tell you, sir?
A. He said that he could help me out if I
[gave] him a thousand dollars, that this could
be taken care of.
Record on Appeal, vol. 6, at 982-83 (direct examination of Thomas
D. Cupit, Jr.); id. at 985:
Q. And did you give him the thousand dollars . . .?
A. Yes, sir, I did.
* * *
Q. Did you get [your driver's license] back?
A. Yes, sir.
Q. When?
A. Charlie [gave the driver's license] back
to me.
Q. When?
A. When he tore up the ticket.
23
See Government's Exhibit 4, included in Record on Appeal
(records of Guillory Bonding Company from 10/16/85-1/12/87 and from
12/29/86-8/28/87).
-22-
was received on Cupit.24 Thus, we conclude that a reasonable trier
of fact could find beyond a reasonable doubt that Stephens extorted
money from Cupit under color of official right.25
III
Stephens argues that the district court erred in admitting
into evidence, over his objections, hearsay statements of his
alleged coconspirators.26 Stephens asserts that insufficient
evidence was submitted with respect to his involvement in the
conspiracy, and that the statements were improperly admitted
pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence.27
According to Stephens, a conspiracy did not exist and the admitted
statements28 were not made in the course of any conspiracy.
The district court's determination that a statement was made
in furtherance of a conspiracy is a finding of fact, which will be
24
See Government's Exhibit 2-32, included in Record on Appeal
(noting that no paper work received by the Leesville clerk of
court's office regarding Thomas D. Cupit, Jr.).
25
See Williams, 621 F.2d at 124 (5th Cir. 1980) ("The
language `under color of official right,' is consonant with the
common law definition of extortion, which could be committed only
by a public official taking a fee under color of his office, with
no proof of threat, force or duress required.") (citations
omitted).
26
See supra note 2.
27
Rule 801(d)(2)(E) states:
A statement is not hearsay if . . . [t]he
statement is offered against a party and is .
. . a statement by a coconspirator of a party
during the course and in furtherance of the
conspiracy.
28
Stephens does not point to any specific statements made by
alleged coconspirators. Rather, he appears to contest the
admission of any statements these coconspirators made.
-23-
reversed only if clearly erroneous. See United States v. Snyder,
930 F.2d 1090, 1095 (5th Cir.) (citations omitted), later
proceeding,
946 F.2d 1125 (5th Cir. 1991), cert. denied, U.S. ,
112 S. Ct. 380 (1991). The phrase "in furtherance of the
conspiracy" is not to be applied strictly.
Id. This court has
"shunned an overly literal interpretation of this phrase." United
States v. Ascarrunz,
838 F.2d 759, 763 (5th Cir. 1988) (citation
omitted).
Our review of the record compels our conclusion that the
district court's conclusion was not clearly erroneous. The record
supports the finding that the New Llano Chief of Police, as well as
other members of the department, were involved in the conspiracy to
extort money.29 The admission of the coconspirators' statements was
appropriate, and the district court did not err in concluding that
such statements were made during the course of the conspiracy and
in furtherance of the conspiracy.
IV
Stephens also contends that the district court erred in
denying his motion for a new trial, because the Government's
untimely failure to apprise him of taped conversations deprived him
of a fair trial. During discovery, Stephens requested copies of
any recording, wiretap or other electronic eavesdropping
information concerning him.30 The Government responded that it had
29
See supra Part II.A. and accompanying text.
30
See Record on Appeal, vol. 2, at 27 (Stephens' Motion for
Discovery and Inspection pursuant to Rule 16 of the Federal Rules
of Criminal Procedure).
-24-
one tape recording concerning Stephens and that it would give him
a copy of this tape.31 As it turns out, other tape recordings
existed, and the tape recordings apparently were conversations
between Stephens and Sergeant Bruce Beamer. The Mayo-Flynn tapes
were not played to the jury until late in the first week of trial,
and the Beamer-Stephens tapes were never played to the jury. The
Mayo-Flynn tape recordings were made available to Stephens before
trial, but he did not make a copy--Stephens was notified about the
Beamer-Stephens tape recordings the weekend before the trial began.
Stephens argues that he did not have adequate time to review
the tapes and that, because of his learning of the tapes so late he
was unable to subpoena and secure Sergeant Beamer's presence at
trial. He asserts that his line of defense was predicated on the
theory that he had no involvement in the charged conspiracy, and
the late offering and revelation of the tapes undermined his
defense and deprived him of a fair trial, in violation of Brady v.
Maryland, 373 U.S. 83,
83 S. Ct. 1194 (1963).
The Government agrees that the second set of tape recordings
was not disclosed in the most timely manner. Stephens apparently
knew of the tape involving the New Llano Chief of Police during the
discovery stage, but did not know of the tape between Beamer and
himself until the weekend before the trial began. The Government
31
This tape contained conversations between the New Llano
Chief of Police, Flynn Kay, and Gregory F. Mayo (an alleged victim
of extortion).
-25-
asserts, however, that, given the overwhelming evidence of
Stephens' guilt, the tapes were of no great significance.32
Stephens appeals that part of the denial of his Rule 33
motion for a new trial based upon the allegation that the
Government suppressed evidence in violation of Brady. Brady
applies to situations involving "`the discovery, after trial, of
information which had been known to the prosecution but unknown to
the defense.'" United States v. Snoddy, 862 F.2d 1154, 1156 (5th
Cir. 1989) (citation omitted). A Brady claim involves three
elements: (1) the prosecution's suppression or withholding of
evidence; (2) which evidence is favorable, and (3) material to the
defense. United States v. McKinney,
758 F.2d 1036, 1049 (5th Cir.
1985) (citation omitted). The evidence is material if "there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
United States v. Bagley,
473 U.S. 667, 682,
105 S. Ct. 3375, 3383
(1985).
We disagree that a Brady violation occurred in this case.
Stephens had copies of the tapes at trial, and he was given time to
listen to them after jury selection and before the trial began.
The inquiry is whether Stephens was prejudiced by a tardy
disclosure--if he received the material in time to put it to
32
The Government also argues that the tapes were not
suppressed, that the tapes were not material to guilt or
punishment, and that Stephens failed to establish that the outcome
of the case would have been different had the tapes been furnished
earlier. Furthermore, the Government notes that Stephens has not
shown how the tapes were exculpatory.
-26-
effective use at trial, his conviction will not be reversed simply
because the material was not disclosed as early as it might have,
or should have, been--such that the fairness of the trial was
impugned. See McKinney, 758 F.2d at 1050 (citations omitted).
Stephens was aware of the tapes' contents at the trial, and he has
not shown that he failed to receive the tapes in time to put them
to effective use. Given this knowledge, we do not find a Brady
violation. Cf. United States v. Wicker,
933 F.2d 284, 292-93 (5th
Cir.), cert. denied, U.S. ,
112 S. Ct. 419 (1991) (Wicker made no
specific request for witness fee information and he knew that
Government was paying for at least a portion of witness's expenses
during trial, thus no Brady violation occurred). We do not suggest
that evidence which is either inculpatory or disclosed during trial
may be the proper subject of a Brady claim.
V
Lastly, Stephens argues that the district court incorrectly
admitted evidence33 regarding his relationship with Guillory Bonding
Company. Stephens contends that the evidence of his relationship
with Guillory Bonding Company was "very prejudicial" and irrelevant
to the charges in the Indictment. He argues that such evidence
confused the issues and misled the jury. The Government counters
33
Stephens questions the admissibility of witness testimony
regarding his relationship with Guillory Bonding Company (see,
e.g., Record on Appeal, vol. 5, at 485-87 [testimony of Mr. Allen
K. Millaway, alleged extortion victim] and Record on Appeal, vol.
9, at 1717-28 [testimony of Ms. Annette Leonard, former employee of
Guillory Bonding Company]) and the admission of weekly reports from
Guillory Bonding Company (see Government's Exhibit 4, included in
Record on Appeal).
-27-
that the evidence was relevant to showing Stephens' intent
regarding those individuals he bonded out of jail, and that the
reports from Guillory Bonding Company were relevant to show that
Stephens failed to account for all the money he received in payment
for bonds.
Rule 403 of the Federal Rules of Evidence states that relevant
evidence may be excluded "if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury . . . ." The district court has
broad discretion in this matter, which is reviewable only for
abuse. See United States v. Blake, 941 F.2d 334, 340 (5th Cir.
1991) (citations omitted). As this court has noted, relevant
evidence is inherently prejudicial, but only unfair prejudice,
which substantially outweighs probative value, permits the
exclusion of relevant matter under Rule 403. United States v.
McRae,
593 F.2d 700, 707 (5th Cir.), cert. denied,
444 U.S. 862,
100 S. Ct. 128 (1979). Rule 403's major function is limited to
excluding evidence of scant or cumulative probative force,
introduced for the sake of its prejudicial effect.
Id. Rule 403
is not designed to allow the court to "even out" the weight of
evidence or to mitigate a crime.
Id.
The Indictment alleges a conspiracy against Stephens and four
substantive counts of extortion. Such evidence as the testimony of
Annette Leonard and the weekly reports of Guillory Bonding Company
show that Stephens received money from various individuals and that
he did not accurately report the amounts. Such testimony and
-28-
exhibits were relevant to ascertaining Stephens' role in the
conspiracy and his extortionate acts against the individuals. We
conclude, therefore, that the evidence was relevant and that the
district court did not err in admitting it.
VI
For the foregoing reasons, we AFFIRM.
-29-
