United States v. Donald J. Blandford

QUIST, District Judge; and Circuit Senior Judge.** GUY, Judge, delivered Senior Circuit NELSON, Circuit opinion of the Court. 712-14), separate Judge (pp. delivered Judge QUIST, opinion. District concurring opinion 714-16), separate delivered (pp. dissenting part part concurring concurring in opinion, Judge GUY’S opinion. Judge NELSON’s GUY, Jr., Circuit B. Senior RALPH Judge. trial, was con-

Following a defendant (1) extortion, violation of victed of (2) 1951; Act, § racketeer- Hobbs 18 U.S.C. statute, of the federal RICO ing, in violation (3) 1962(c); making false § 18 U.S.C. investigators, in viola- to federal statements appeal, defen- 1001. On tion of 18 U.S.C. challenges convictions as well these dant reasons, following For the his sentence. affirm.

I. investiga- FBI out of an This case arises Kentucky. corruption in public tion into “Operation BOP- investigation, dubbed TROT,” of the on certain members focused Assembly sus- Kentucky who were General extorting payments in ex- cash pected of they would take a change for assurances that legislation pertaining to on particular stance Sep- racing industry. Initiated the horse 1990, Operation ultimate- BOPTROT tember officials, including ly several ensnared Blandford, Kentucky’s Speaker of Donald J. The circum- Representatives. House (briefed), Atty. Cushing, Asst. U.S. Terry conviction are to stances that led Blandford’s Atty., Stephen Frye, Asst. U.S. Stephen G. as follows. (argued), Louis- Pence, Atty. Asst. B. U.S. Walboum, III, ville, KY, Office Edwin J. Act A. Violations Hobbs KY, for U.S. Atty., Covington, appeal, River- to this At times relevant all Downs, racing located in (ar- track a harness Holbrook, side Holbrook Alen W. Morton Henderson, Kentucky, cooperated with the Wible, Holbrook, Sullivan briefed), gued FBI probe, its directed KY, part FBI. Owensboro, J. As Helmers, for Donald & “Jay” Spurrier Downs to hire John Riverside Blandford. ** * Quist, States Dis- United J. Guy, Honorable Gordon Ralph senior B. Jr. assumed Honorable Michigan, Western District Court for the trict September on status sitting by designation. ostensibly promote the track’s interests in legislation.2 breed-to-breed Spurrier add- ed, however, assembly.1 Spurrier logical the state was a that Blandford would accept choice; lobbyist Frankfort, payment only McBee, who, prominent time, from at the (not Kentucky, was still unaware Kentucky’s investigation he chaired Harness Spurrier’s mention Racing advice, complicity). Spurrier’s Although Commission. On FBI did not immediately attempt Riverside Downs then hired William McBee. bring fold, McBee, McBee into the lobbyist, McBee neverthe- also was a former state unwitting less became an participant, representative recently assist- who had lost a bid for ing investigation on at least three occa- re-election. by passing sions FBI to Blandford. important part Spurrier’s An The first such place occasion took in late McBee’s work on behalf of Riverside Downs January 1992 lobbyists, while various state any proposed legisla- their effort to stifle legislators (including Spurrier, McBee, and ability tion would restrict the track’s Blandford), guests and their trip were on a thoroughbred simulcast In particular, races. trips, Florida. Similar which were financed Downs, Riverside racing like other harness (the by various groups interest harness rac- tracks, possible was concerned about the en- them), ing industry among taking had been actment of legislation. “breed-to-breed” Un- place on an annual basis for a number of legislation, der such race would tracks years. leaving Prior to trip, Spurrier involving able to simulcast those races and McBee possibility discussed the of soli- similar breeds of horses. citing, by way illegitimate of an payment, Spurrier Operation became aware of BOP- Blandford’s defeating assistance in breed-to- TROT after he and McBee had decided to legislation. end, breed To this McBee was assist any Riverside Downs’s effort to block provided Koumas, with Chris $500 a Riv- proposed legislation. Spurri- breed-to-breed representative erside Downs coop- who was agreed cooperate investigation er to with the erating with investigation. Once in Flor- subsequently informed FBI ida, money McBee handed the over to Bland- Blandford, others, among willing would be to doing, ford. In so McBee pay- described the accept money exchange in opposition for his “walking ment as money. around” He did time, That's, Spurrier accurate, 1. At this pretty yes. was unaware of the on- A. that's Indeed, going investigation. Q. Spurrier federal You said— now, again, Operation would not find out about And BOPTROT A. it’s in the mind of the 7, 1992, beholder, Januaiy guess, wrong, until when I the FBI confronted whether it's I but talking gover- legal him with think we evidence that he had are about what is bribed the here. We, Wilkinson, $20,000. Okay. Q. nephew, going get nor’s Bruce I’m to with to that in a Spurrier you say second. But didn't had made the bribe in after court the connection with take, day press, lobbyists dispute other Racing can or I between the Harness Commis- money lobbyist, can take counterpart, as much from a Thoroughbred sion and its Rac- difference, Commission, ing long doesn't make as as I don’t over the allocation inter- return, promise anything nothing wagering there is track dates between Riverside Downs Park, wrong you say nearby with that. Didn't thoroughbred and Ellis that? track. law, A. I said it’s not a dispute Pursuant bribe. to state was to be Q. It’s not a bribe? gover- referred to an arbitrator selected bribe, By paying A. Yes. Spurrier hoped nor. had to Okay, your Q. nothing mind. And there is favorably disposed ensure that an arbitrator to wrong with it? position assigned Riverside Downs's would be A. No. dispute. resolve the fact, Q. you plenty As a matter of did it times, you? didn't trial, following exchange 2. At as the from his nothing illegal [] A. There is about it. reveals, freely direct examination Blandford ad- times, Q. plenty money And did it took something mitted that he had made of a habit out lobbyist you promise from a when didn't them accepting lobbyists: cash from anything? Q. you quoted saying you I believe as A. Yeah. anything wrong taking don’t Q. think there is with From Bill McBee? money lobbyists long as as there is noth- A. Yeah. made; Tr„ VIII, ing, promises (Trial 97-98.) right? no is that Vol. as late as restriction include a breed-to-breed nor legislation3 breed-to-breed not mention 23, 1992. during March occurred what tape record did he testify, would later McBee As transaction. approval court FBI obtained Again, the money accepted however, had Blandford equipment in selected place surveillance (in occasion prior one at least from him on occasion, suite. On this Spurrier’s spots 1990) was intended knowing February 20 din- which the bedroom pend- respect to position with to influence outfitted payments had occurred was ner racing legislation. ing horse de- video audio and surveillance with both dinner, place took which Prior to this vices. make a arranged for McBee FBI 11,1992, Spurrier provided McBee on March after soon payment to Blandford second give to Blandford. another $500 McBee, Blandford returned Spurrier, in- instructed McBee specifically Spurrier junket. This time the Florida from the payment was condi- Blandford form during a dinner place to take transfer was to breed- opposition upon Blandford’s tioned Spurrier’s hotel suite held at party to be Spur- Notwithstanding legislation. to-breed for the dinner preparation Frankfort. instructions, only marginal- McBee was rier’s authorization, up the FBI set and with court it came to than before when ly cryptic less equipment in surveillance video and audio behind about the informing Blandford reason The din- Spurrier’s suite. parts different Bland- During McBee’s and payment. February planned on ner forward went conversation, in the place took ford’s only general was not the bedroom, exchange following bugged Rep- attend. assembly guest member place: took others, among Jerry Bronger, resentative During course of the present. also was ya got there? BLANDFORD: Whatta from McBee dinner, accepted $500 (CHUCKLES) Once two suite’s bedrooms.4 in one BEE: Another five. MC however, not mention McBee again, did that? Well what is BLANDFORD: handing over legislation in breed-to-breed “Here’s a little simply stated: the cash. He people. BEE: Harness MC me and something MR. SPURRIER Huh? BLANDFORD: and ... so people horse the harness and taking care governor’s BEE: Your MC right. replied: Well “All forth.” Blandford taking care of your governor’s ... that’s wonderful!”5 ML Spurrier’s hotel suite dinner A second Well, ... ... what BLANDFORD: what op- yet another provide McBee with would it, I get I share! BEE: FBI to Blandford. MC When give portunity to (LAUGHS) time, there no breed-to- Although, was inter- simulcasting and on breed restriction Hey, your heart. bless BLANDFORD: Kentucky’s horse rac- wagering track BEE: Huh? MC (“horse bill”), possibility ing legislation your Bless BLANDFORD: heart. added to would that such a restriction be industry partici- As horse bill still remained. my BEE: I share with buddies! MC aware, FBI pants and were well right? Are we all BLANDFORD: governor bill, by the was drafted horse Ain’t BEE: breed breed. MC No house commit- to the relevant and submitted 2, 1992, there. be amended could tee on March pay evening, Bronger his accepted following explanation 5. Later for his

3. offered McBee $500, ment, subject As he of breed-to- in the same bedroom. to broach also for decision not say any- legislation: going cash, Bronger “I wasn’t breed McBee over the cautioned handed Downs until thing Speaker about Riverside another say anything Rapier, to Kenneth not to right.” thought time was I dinner, attending “cause representative state [Blandford], you, Donnie this here is between bedroom, up set particular FBI had me[.]” interception only audio devices. (UNINTELLIGIBLE— And, BLANDFORD: SPURRIER: got this has kinda UI) offme the hook. Everything’s Okay. BEE: doin’ BLANDFORD: MC fine. And they’re they’re pushing ... not us. I you. SPURRIER: Thank you know you hate Riverside but can’t BLANDFORD: Wonderful. legislate ‘em out of business. Let ‘em (UI) you SPURRIER: I really just mean go out of on their business own. super. been Yeah, BLANDFORD: but we’re ... I Well, let, just BLANDFORD: let me mean, ... we’re not have don’t know. con_we have ah ... don’t SPURRIER: I know. (UI) BEE: MC BLANDFORD: you got all That’s to do Okay BLANDFORD: ... I, I, sometime may sometime sometime I (UI) BEE: MC No ... (door quick enough closing) to (UI), BLANDFORD: MR. BRERETON called but ... (UI) today

me ... that’s helluva horse (UI). you finally bill fin ... You did SPURRIER: This thing breed-to-breed (UI) right. you just I said don’t throw just gonna was kill us. (UI). something say, hey, out there know, BLANDFORD: I well ... I know that now. just SPURRIER: No I mean ... breed, BEE: MC And ah no breed to (UI) BLANDFORD: alive, stay RED MILE and then that personal SPURRIER: ... [a] thing. stays bunch down there alive a little ... I BLANDFORD: know. gone. while but it’ll be SPURRIER: And once we killed that we Okay. right. BLANDFORD: Yeah. All good. done Thanks. right. BLANDFORD: That’s It wasn’t (UI) my

MC BEE: I’ll bills. care of take (UI) gonna go, you gotta (LAUGHS) my buddies! I SPURRIER: know. evening, Spurrier expressed Later that you BLANDFORD: ... you gotta know gratitude to Blandford: leavin’, you get SPURRIER: Before to I SPURRIER: It’s ... fair (door just you want to closing), thank for Okay. BLANDFORD: you’ve really what done all for the har- serious, SPURRIER: It turned out. people they’ve ness I’m dead to’em, they’ve been fair been fair to es- Okay. BLANDFORD: pecially you my know breed to breed happen SPURRIER: But that don’t often. problem. know, you BLANDFORD: Sometimes BLANDFORD: Yeah. you, you, you ... you’re wonder how really appreciate here, SPURRIER: And I gonna get through it ever pro- just. (UI) DONNIE I you and but ... cess bother me until (UI) get you’re where Okay. BLANDFORD: (UI) just I say SPURRIER: wanna just say you. SPURRIER: I wanna thank (Government’s #28.) Trial Ex. Okay, hey. BLANDFORD: SPURRIER: I’m serious. B. False Statements to the FBI know, I, BLANDFORD: I I understand stage Plans a third dinner were held in and I know. abeyance when the FBI instead decided to SPURRIER: people And these have been operation reveal hopes McBee good them, and I’ve embarrassed this cooperation. then enlist his could informed ITW’s about broke’em. When confronted the FBI on March 1992, McBee, BLANDFORD: Yeah. though initially receptive to the Blandford, reported the Guy, of ly, on behalf the inves- overture, refused assist agency’s Kentucky Registry $3,500 ap- FBI check following day the tigation. The (“KREF”) the Davies Blandford, FBI Finance himself. Two Election proached represented a Clerk, claiming a that it County office with up Blandford’s agents showed work.7 campaign-related the video and copies of for reimbursement tape recorder February 20 and have to Guy’s March that he would tapes allay concern audio To $3,500, Blandford pay dinners.6 income taxes $1,018.50. Guy check to for another wrote recording consented to After Blandford the same eventually would offer Blandford him sever- interview, agents asked check; namely, this second justification for of- recently had been he whether al times undercompen- Foley, Guy, like had been position his exchange for payments fered campaigns. previous On work on sated for pf Blandford re- legislation. piece on a appar- 4, 1988, was January report received such filed— that he had peatedly denied mail8—with ently through United States including McBee. anyone, offers from Although as well. for check the KREF even after fact, his denials continued he report, it was signed Guy filled out and tapes for and audio the video agents played permission and gave him the Blandford who him. Moreover, Blandford authority so. to do include Guy C. RICO Violations with the information provided desig- was report. Again, the check in the affairs into Blandford’s inquiry The FBI’s campaign ex- for nated as reimbursement respect to conduct with to his limited pense. Indeed, industry. racing the state’s horse Blandford, FBI after it had interviewed facts, grand jury a federal Based on these regarding Blandford’s obtained information charging Blandford returned indictment from Buel campaign funds alleged misuse extor- attempt to conspiracy and commit assis- chief administrative Guy, Blandford’s (Counts § tion, 18 U.S.C. in violation of Accord- September 1992. tant from 1984 fur- respectively). The indictment 1 and money loaned Guy, Blandford ing to in 1986 viola- charged Blandford with RICO ther ($3,500) to campaign account taken his 1962(c). regard, In this tion. 18 U.S.C. Bland- time Foley, was at that Patricia who racketeering acts. listed four the indictment Foley used secretary girlfriend. ford’s the offenses detailed either While on a car. payment a down first such accounted 1 and 2 Counts Blandford way in Guy described of three act, through four acts two consisted First, Blandford wrote up set the loan. fraud, each alleged mail separate instances Guy. campaign account to check drawn on misuse pertaining to Blandford’s Guy to the check cash He then instructed charged Finally, Count funds. Guy complied, money to him. and return the agents FBI making to false statements with money over to the turned and Blandford interview, 31,1992, in viola- during his March explained that since Foley. later Blandford § 1001. tion of 18 U.S.C. during campaign for his Foley had worked trial, jury acquit- Following a two-week time, campaign funds that spare “he felt her him 1 and convicted ted Blandford of Count her for that compensate could be used unsuccessfully 10.) After and 4. of Counts Eventual- Brief work.” (Appellant’s county of resi- county the candidate’s agents disguised clerk in contends that 6. Blandford ordinarily by questioning Guy an- that this him behind dence. testified their true motive they required some alle- nouncing only by reports had "received desti- sending done concerning corruption in the State gations States mail. via the United nations agents Kentucky.” of Blandford adds through mid-way the interview waited until report dispute this as to whether 8.There is some previous dinners on "spr[i]ng” tapes of was, fact, through United States mail. in sent him. Guy's Unit- that the assertion Blandford contests customary of send- means ed States mail was law, reports Kentucky campaign finance 7. Under reports. ing campaign expense KREF and the both the are to be filed (2) moving judgment for a new trial and for a The term “extortion” means the ob- acquittal, taining property another, Blandford was sentenced to concur- with his consent, imprisonment by wrongful rent terms of of 64 months induced use of actual (Counts 3) (Count 4). force, fear, or violence, and 60 months threatened or or addition, $10,- right. Blandford was assessed a under color of official $108,356 000 fíne and an additional for the added). (Emphasis cost of his incarceration. First, Blandford takes issue with the dis- Blandford then filed motion with the jury trict court’s pertaining instructions requesting stay district court of the fine Counts 1 of his indictment. The in- pending appeal. and a release on bail his error, structions in complains, he be- motion, When the district court denied his they cause require jury did not to find requested the same relief from that he had explicit entered into an agree- emergency court in this the form of an mo- (or quid pro quo) ment with Riverside Initially, stayed tion. court this the fine for oppose Downs to legislation. breed-to-breed upon appropriate cost of incarceration argues Blandford also for the reversal of his by bond and conditions to be determined extortion ground conviction on the temporarily stayed district court. We also against evidence him sup- was insufficient to the commencement of Blandford’s sentence port jury’s verdict. 27,1993, September until panel to allow a full Two Supreme decisions in- Court of the court to consider the matter. After analysis form our of these claims. See Ev- filing the district court directed the of a bond —States, U.S.-, ans v. United 112 S.Ct. fine, panel as to the a three-member of this (1992); 119 L.Ed.2d 57 McCormick grant court declined to Blandford release States, United 500 U.S. pending appeal. (1991). McCormick, 114 L.Ed.2d 307 Virginia legislator West was convicted of ex-

II. tortion and accepting income tax evasion for payments exchange cash in agreement for his A. support legislation furthering the efforts appeal, On Blandford mounts several chal- graduates foreign medical schools to lenges to his Hobbs Act conviction. Title 18 practice they medicine within the state while which U.S.C. sets forth the definition attempted pass licensing the state’s exam. “extortion,” provides pertinent part: payments, were deemed (a) any way contributions, degree by Whoever or lobbyists ob- were made who structs, delays, foreign or affects commerce or the had been retained doctors. commodity “contributions,” movement of article or receiving in After several commerce, by robbery legislator question good or extortion or at- made on his do, tempts conspires promise by or so sponsoring legislation or commits or al- physical any person foreign threatens permanently violence to lowed doctors to be li- property plan notwithstanding furtherance of a pass their failure to censed— purpose anything to do years violation of this the state’s virtue of their exam — $10,- experience.9 section shall be fined not than more imprisoned twenty 000 or not more than conviction, legislator challenged years, or both. arguing the trial court’s instruc- (b) in As used this section— they tions were flawed because con- did not quid pro quo requirement.10

tain a The Earlier, legislator sponsored necessary government prove 9. had a bill that it is not that the program permitting foreign extended a doctors promised that the defendant committed or practice they attempting pass while is, quid pro quo, commit a consideration licensing exam. in the nature of official action for the in return payment money lawfully of the not owed. regard 10. With to the offense of extortion under course, quid pro may, quo Such a be forth- right, color of official the district court instructed coming may in an extortion case or it not. In jury pertinent part in con- conviction, or done. ethical to do have Whatever agreed and reversed Court indicate, may appearances and siderations stating: the federal legislators commit to hold that contributions is [campaign] receipt of The they act for the when having crime of extortion the Act as ... vulnerable under legisla- support or right, but of constituents of official benefit under taken color been furthering made in return interests of some of are tion only payments if undertaking by constituents, promise shortly or before or after explicit an their for perform an or not to perform are solicited and campaign contributions official official situations the beneficiaries, In such act. is an from those received official asserts that will be conduct his official Congress assessment of what unrealistic promise or of the by the terms controlled by making it a crime to have meant could money receipt of undertaking. This is another, with his con- property from obtain color of official under by official an elected sent, right.” To “under color of official meaning Hobbs Act. of the right within open prosecution hold otherwise would (emphasis long at 1816-17 has been 111 S.Ct. conduct Id. at Bibby, added); States thought also United the law but also see to be well within Cir.1985) (“What n. 1 very is un- F.2d that in a real sense conduct taking of proscribes is the Act campaigns the Hobbs are long election avoidable so as exchange in for public official a expen- or private financed contributions doing refrain from promises to do or specific ditures, begin- they from the have been words, must In there specific things. other require ning Nation. would stat- of the It (citation omitted), cert. quid pro quo.”) be a explicit than the language utory more 106 S.Ct. 475 U.S. contrary justify a Act contains to Hobbs grounded its Court L.Ed.2d 300 The conclusion. realistic view decision a 272-73, at 1816-17.11 500 U.S. at 111 S.Ct. we, nation, as a system that contribution Evans, granted certiorari to In the Court worse) (for adopted. better have respect to split in the resolve a circuits observed: Court regard, the McCormick questions expressly declined to one of the leg- supporting Serving constituents McCormick; namely, an whether address district and benefit the that will islation part on the of a affirmative act of inducement groups therein is the ev- individuals un- public official is an element of extortion It is also legislator. eryday business of right. official The defendant der color of fi- must be run and campaigns true that Evans, county in of a a commissioner Geor- being constantly solic- Money is nanced. gia, accepted campaign contributions total- candidates, who run on on behalf ited $8,000 agent posing as a ling FBI support claim platforms and who exchange developer. for the they intend real estate and what of their views basis constantly expensive, must soli- and candidates essential element of event it is not an either crime. People for and con- cit funds. vote candidates McCormick, at at 264 n. campaigns 500 U.S. because of tribute to candidates' views, 1812 n. 4. performance, and candidates' those issued, the day after this instruction suppose promises. be naive to It would further clarification. the court for asked sup- expect do not some contributors benefit'— substance, court, repeated in- the same example port legislation, favorable —for struction, "extortion does not but added that their contributions. receives who official occur where one of the American ... Because of realities voluntary political contribu- legitimate gift political system, fact that the Hobbs and the may though political contribution tion even justify making language common- did not Act's of local law. in violation have been made cash criminal, ly accepted political the Su- behavior freely given Voluntary without is that which is to this defi- preme Court in McCormick added 111 S.Ct. at expectation benefit.” Id. requirement of extortion the nition payment the exer- between connection recently put it: Seventh Circuit 11. As the explicit. quid pro quo cise of office—the —be recognized the Allen, 405, (7th several realities of McCormick F.3d 410-11 States v. United Money political system. fuels the American Cir.1993). Campaigns are political American machine. money, agent-de- assured the ment of the the defendant offense of extortion “under veloper right” that he would do what he could to color of official and need be included obtaining in agent-developer assist the rezon- in the instruction.... today We hold ing approval for a tract of land. The defen- the only Government need show that a perform public dant was not able to his end of the payment has obtained a official however, entitled, bargain, because he was arrested he knowing was not opportunity payment he had an to do so. the before was made in return for offi- conviction, challenging his extortion the de- cial acts. instructions, jury fendant took issue with the — (footnotes at-, U.S. S.Ct. at 1889 require jury

which he claimed “did not omitted) added). (emphasis find ‘an element of duress such as a de- Exactly what effect Evans had on McCor jury permitted mand’ “to convict him altogether mick is not clear. The federal ‘passive acceptance on the basis of the of a circuit courts that have considered the mat properly contribution’ and “did not de- ter assume that the former establishes a quid pro quo requirement scribe the for con- quid pro quo modified or relaxed standard to jury if payment viction found that applied non-campaign in contribution — campaign a contribution.”12 was U.S. view, eases. Under this comparatively at-, 112 S.Ct. at 1888-89. strict standard of gov McCormick still would Court, however, rejected the defen- alleged ern when the Hobbs Act violation jury dant’s attack on the instructions and receipt arises out of the campaign of contri affirmed his conviction. The Court ruled: public butions a official. See United Martinez, reject petitioner’s (11th We criticism of the States v. 14 F.3d instruction, Cir.1994); Taylor, and conclude that it satisfies United States v. 993 F.2d (4th quid pro quo requirement Cir.1993), of McCor- U.S. -, completed (1993); mick ... because offense is 126 L.Ed.2d 202 public Garcia, at the time when the officialreceives United v. States 992 F.2d (2d Cir.1993). payment agreement evidently a return for his These courts as acts; sume, perform specific engaging any rigorous official fulfillment of without anal quid pro quo ysis, validity not an position. element of the of their The fol reject petitioner’s lowing passage offense. also con- We taken from the Fourth Cir step Taylor tention that an affirmative is an ele- cuit’s decision is illustrative: ty, 12. The district court had instructed the such would action constitute extortion even though follows: already duty-bound the official was question. take or withhold the action in guilty The defendant can be found [18 following U.S.C. if 1951] all of the ele- $8,000 The defendant contends that the he proved beyond are ments a reasonable doubt: Agent Cormany campaign was a received First, person that the defendant induced the campaign contribution. The solicitation of part prop- described in the indictment to with any person necessary contributions from ais second, erty money; or that the defendant did permissible political activity form of on knowingly willfully by so means of extor- part persons political who seek office defined; third, tion as hereinafter that the ex- persons political who have been elected to delayed, interrupted tortionate transaction Thus, acceptance by office. an elected adversely affected interstate commerce. not, campaign a Now, official of contribution does involving public extortion in a case a itself, constitute a violation of the Hobbs Act wrongful acquisition official means the though pending even the donor has business properly from someone else under color of before official. right. official However, public if a official demands or right Extortion under color official is the accepts money exchange specific wrongful [a] re- taking by public official quested power, exercise of his or her official property not due him or his office whether force, acceptance such a demand or does taking accompanied by constitute or not the words, regardless violation of the Hobbs Act of wheth- threat or the use of fear. In other payment wrongful power er the in the use otherwise valid made form of official may convert dutiful contribution. actions into extortion. So, Evans, agrees if official to take or with- United States 795-96 - 1990), -, aff'd, wrongful pur- hold [sic] official action or Cir. pose inducing part proper- a victim to 119 L.Ed.2d 57 The by knowing winks and nods. trated prove prosecution the necessary for It is if criminal it from the official is “that a inducement Evans standard under the from his words express implied or if it is to which he is payment obtained officialhas actions, it to be payment long so as he intends entitled, knowing that the and is not Or, interprets it. payor acts.” the so official so and in return for was made payment to be if finds the the course in the usual The criminal law contribution, then, under McCor- campaign and conse- with motives concerns itself payments are mick, “the must find that the trier of not formalities. And quences, explicit promise or for an made in return deciding the quite capable of intent fact is perform or undertaking by the official spoken or actions which words act.” an official perform not to construc- as the reasonable taken as well omitted). short, (citation F.2d at 385 by and the the official given tion to them Evans, have concluded circuits these payor. of induce- addressing question aside from — (Kenne- at-, at 1892 112 S.Ct. U.S. question ment, an additional also resolved then, sense, J., Ev- dy, concurring). In this by the McCormick unanswered expressly left provided gloss on the McCormick ans require- pro quo quid Court —“whether “explicit” qualify the word Court’s use of contexts, such as when in other exists ment requirement. Explicit, as quid pro quo its meals, gifts, travel official receives an elected Evans, speaks not to the form of explained in 500 U.S. of value.” expenses, or other items payee, agreement payor and between n. 10. at 1817 n. payor degree to which the but to the differently. Ev- Evans somewhat We read terms, regardless of payee were aware of its (1) believe, that no ans, merely clarified articulated. Put whether those terms were performance step towards affirmative by “explicit” simply, Evans instructed need be taken promise public official’s “express.”13 did not mean McCormick (i.e., pro quo is not quid fulfillment of entirely new charted offense) (2) To the extent Evans quid element waters, campaign not to differentiate it did so by some- is satisfied pro quo of McCormick non-campaign contri- eases from contribution thoroughly thing short of a formalized cases, (i.e., the issue but to consider bution arrangement contractual articulated granted, the issue of in which certiorari made on was knowing payment merely lim- reading of Evans —as enough). It was inducement. Our for official acts return campaign for- context —is provide ited to the contribution important for the Court all, case, discrep- by fact after of a factual bolstered clarification because mer McCormick, cases; Moreover, ancy the two involved contributions. between Evans, actually majority purport had to extend its did not defendant unlike context, his arrest. nor promise holding beyond before performed his immediate clarification, the require it to in the case of the latter before the Court And did the issues McDade, the McCormick gave content Court what do so. See United States (refus- Kennedy (E.D.Pa.1993) As quid pro quo entails. Justice F.Supp. 1171 n. 8 explained quid pro quo his concurrence: re- ing apply McCormick’s non-campaign contribution quirement payor need not state official and the Evans, at-, terms, case); but see express pro quo in quid (“Readers today’s opinion at 1894 be frus- S.Ct. law’s could otherwise the effect terms; Directly and dis- distinguished may in this set words. That the terms forth respective defini- distinctly their tinctly and ex- manner is borne out Made known stated. "explicit” Dictionary defines tions. Black's Law plicitly, and not to inference. Manifested left ambiguous, having no dis- obscure or "[n]ot language, appropriate as distin- direct and guised meaning or reservation. Char in under- guished con- inferred from Dictionary ed. Black's Law standing.” usually word is contrasted with duct. added). 1990) "Express,” oth- (emphasis "implied.” hand, er is defined as: added). (emphasis Id. at 580 direct; Clear; definite; explicit; plain; unmis- takable; ambiguous. Declared not dubious or

($7 difficulty understanding present purposes. instance, for should have little site our For underlying thing rationale that Court’s one that we do from know Evans is only in holding applies campaign not contri- that a Hobbs Act conviction for extortion cases, prosecutions.”) but all right bution under color of official will be sustained J., (Kennedy, concurring); at id. U.S. in campaign gov contribution cases when the -, (suggesting 112 S.Ct. at 1899 that the ernment quid establishes the existence of a quid pro quo Court extended McCormick’s pro quo, as set forth McCormick and extortion) requirement to all eases of official proposition, informed Evans. From this (Thomas, J., dissenting). it non-campaign follows a that fortiori cases, less, which perhaps contribution are Evans, interpretation our Pursuant more, clearly but prove not difficult to from Supreme cannot certain whether we government’s standpoint, the same show apply Court would have courts a different ing quid pro quo of a also would suffice. public acceptance standard when a official’s Additionally, approved Evans of this court’s payments concededly that are not cam- Butler, decision in United States v. 618 F.2d paign contributions forms basis that (6th Cir.), denied, cert. 447 U.S. Indeed, charge. strong official’s extortion a S.Ct. 65 L.Ed.2d 1121 In But argument treating could be advanced for ler, non-campaign public contribution ex campaign contribution cases and non-cam- case, congruence tortion noted we of the paign disparately. contribution cases Cam- public bribery. crimes extortion and contributions, We paign as the McCormick Court elaborated: noted, enjoy might pre- what be labeled a

sumption legitimacy. Although legitimate Assuming arguendo, that Butler’s con- contributions, campaign not unlike Hobbs duct passive accep- consisted of the mere payments, given Act extortion are with the bribe, tance of position is the of the perhaps hope, expectation, pay- that the conduct, United States that such whether likely will make ment the official more of, acceptance the solicitation or the mere interests, support payor’s punish nei- of, payments illicit for the desired “official giving taking presumably ther the nor the action”, was a clear abuse of of- Butler’s because we have decided alternative fice, falling proscriptions within the of the financing campaigns public funds is agree. Act. [Hobbs] We Butler’s conten- arrange- even less than attractive the current tion that a distinction under the Act is Conversely, if presumption ment. is to voluntary payment drawn between the of a payments be accorded to that occur outside bribe, extortion, by way of the induce- context, campaign of the contribution payment, ment initiation of such is a presumption would be the antithesis of the technical overdrawn is in distinction which way, one described above. Stated another keeping legislative with neither the intent where, case, public pri- official’s statute, holding nor recent case law justification mary receiving, with relative power, that in eases of misuse of official impunity, payments private cash bribery mutually and extortion are not ex- i.e., sources, present campaign financing our clusive. available, system, public is not that official is alia, (citing, Id. at 417 inter United States v. rationalizing left with few other means of (6th Cir.1977), Harding, 563 F.2d 299 actions.14 434 U.S. -— (1978)); Evans, That Evans and McCormick involved L.Ed.2d 762 see also public receipt at-, (noting equiv official’s contri law).15 they inappo- butions does mean are alence of both crimes at common imply receipt 14. We do not intend to of a 15. The Butter court went on to state non-campaign payment ipso contribution statutory requirement crux of the facto receipt a Hobbs Act wrongful violation. of such a right” “under color of official is the instance, payment, for would not be actionable payments. use of one's office to obtain where de minimis amounts were at stake or held that matters [Seventh has] "[i]t Circuit pay- recipi- where the funds were earmarked for the not whether the official induces legal perform perform ent official's defense fund. not to ments to his duties or in fact been made. See Gar- tributions had backdrop that we evaluate against this It is instruction, cia, (noting at 414 instruc challenges to prove induce- sufficiency required rela of the evidence tions and the ment, objectionable it im- The former because conviction. was not tive to his extortion proof Apparently operating of easily posed an additional burden dismissed. assumption that Evans government). under the mistaken bar, the district court the ease at controlled sufficiency of the Turning Blandford’s to the rele instruction that tracked issued an issue, as we have argument, the evidence Evans, holding quoting the portion of

vant it, sufficient is as follows: Was there framed directly See United States therefrom. juror could which a reasonable evidence from (2d Cir.1993) 100, (reject 114 Coyne, 4 F.3d accepted a Blandford bribe? conclude that challenge instruction on the basis ing payments contends that the cash quid pro quo requirement “it set out the that during the course of from McBee he received Supreme the Court’s statement and tracked exchange were not Operation BOPTROT — U.S.-, denied, ”), cert. in Evans Rather, claims the he for his official acts. (1994). 929, 127 The court L.Ed.2d S.Ct. merely gratuity “a given as payments were charged: (Re- Speaker.” ... status as [his] because [Ejxtortion obtaining proper- means the 6.) sufficiency reviewing In the ply Brief at entitled, not from anoth- ty, to which one is evidence, question “the relevant is wheth- the consent, person’s under color er with that er, light viewing in the after the evidence right. public A commits of official official prosecution, ra- most favorable payment he obtains a extortion when of fact could have found the es- tional trier entitled, knowing not that which he was beyond a rea- elements of the crime sential in return his payment was made Virginia, 443 doubt.” Jackson v. sonable acts. official 2781, 2789, 61 L.Ed.2d gov- guilty, the [To find defendant prove] ernment must present Judged against the evidence defendant property payment to obtain or a intended ed, position It is Blandford’s is untenable. he was not entitled with to which accepted that Blandford incontrovertible knowledge property payment or payments from McBee within three $500 being given in return an was that Blandford span official of three months and authority act or an exercise his any legitimate claim of entitle official cannot make potentially includ- regard legislation estimation, payments. these our ment to provisions. As with ing Breed to Breed (in transcripts particular, the evidence One, “property” the term as used Count discussions) established taped further money tangible Two means or other Count accepted payments know that Blandford things intangible of value. (1) a harness race track ing that McBee was (2) added). lobbyist; that the source of the above (Emphasis Our discussion (3) instruction, people”; far “the harness horse that this was should make clear bill, Blandford, Kentucky contained or actually horse inured prejudicing effect, impor vital potentially contained issues of the instruction to his benefit. (includ industry racing tance to the harness government prove campaign con- made the pending.16 ing legislation) was though breed-to-breed even no con- tribution ease here, duties, even, (quoting United States v. perform 618 F.2d at 420 or not his Braasch, (7th Cir.1974), perform unrelated to his duties which acts 43 L.Ed.2d 421 U.S. only because of his official can be undertaken (1975)). long position. for the So as the motivation office, recipient’s payment focuses on the admittedly Although transcripts are 16. ambit of 18 U.S.C. conduct falls within the that, again clarity, note consistent models may also consti- 1951. That such conduct Evans, agreement reading express with our bribery” not a relevant consid- tute "classic required violation to for a extortion is not eration.” campaign contribution case. even in a arise er, this, juror rational con- From could have was addressed the district court when underly- cluded not that the motivation following offered the instruction: (i.e., buy ing payments the desire to point One more about count 2. As I vote) corrupt, influence was but just you, have told the indictment accuses being also Blandford understood he attempting defendant of to obtain mon- ability paid for his to act on this motivation. ey from William McBee in exchange for his words, juror In other a rational could have regard legislation poten- influence accepted pay- surmised that Blandford tially containing provisions. breed-to-breed despite being accep- ments aware that payment allegedly first occurred on engender expectations tance would certain on January payment The second part payor. Coyne, the the See F.3d at allegedly February occurred on 1992. (“[I]t public is sufficient if the official payment allegedly third occurred on expected understands that he she is as a March payment particular result of the to exercise does prove not have to i.e., pay- kinds of on behalf of the influence — you all of these for guilty to return a arise.”). specific opportunities or —as charge. verdict on this beyond Proof sum, In the evidence was sufficient to dem- reasonable doubt of one of these three that pay- onstrate the “motivation for the payments enough. But in order to re- recipient’s ments] focuse[d] office.” verdict, guilty turn a you all twelve of must Butler, 618 F.2d at 418-. Blandford is cer- agree proved. that the one has been same tainly observing given correct in that he was light instruction, In unanimity this money Speaker he because reject duplicity argument. Blandford’s See House; but for the fact that he had the Cherif, United States v. 943 F.2d power racing legislation, to influence horse (7th Cir.1991) (“The problem Cherif com payments he would not have been offered the plains possibility about —the jury Blandford, place. however, in the first draws would though convict him even it did not wrong conclusion from this observation. unanimously agree on what false statement insulating prosecution, Rather than him from he easily by made —could have been cured McBee, acceptance Blandford’s of cash from telling jury instruction that it could con circumstances, plainly under the constitutes vict Cherif on only the false statement count acceptance of a bribe. The use of if unanimously agreed it on the false state personal office to benefit one’s financial sta- made.”), U.S.-, ment he in precisely tus this fashion is the evil that (1992). 118 L.Ed.2d 211 right” “under color of official extortion was designed prevent. Id. at 420. Blandford further maintains that the by district court admitting erred into evi

Blandford also maintains that Count 2 tape by dence the recorded duplicitous of his statements made indictment was because it alleged co-conspirator, Jerry Bronger. his contained more than alleged one act of extort regard, Blandford claims that the apparently argues ion.17 he statements which during jury February that under Count 2 the were made could have con highly victed him for March 11 unanimously prejudicial extortion without dinners were agreeing they express that he committed at least of his one defense because “show an concern, the listed acts. quid pro quo payment howev- between [McBee’s] Thus, above, fense, non-campaign making as noted contribu- it difficult to determine whether cases, fully quid- tion the need for a articulated a conviction one rests on of the offenses pro quo arguably great- is diminished to an even or on both. Adverse effects on a defendant er extent. may improper charges include notice of the him, against prejudice shaping in the of evi- Duncan, explained 17. As we in United v. States dentiary rulings, sentencing, limiting re- (6th Cir.1988): 850 F.2d 1108 n. 4 appeal, exposure jeopar- view to double on duplicitous charges A indictment is one that dy, danger and of course the that a conviction separate single offenses in a count. The over- will result from a less than unanimous verdict duplicity all vice of general is that the cannot in a separate as to each offense. finding verdict render its on each of- business, official than in his help killing other Bronger’s 20.) actions, know if I’ve ever I don’t Brief at official (Appellant’s breed-to-breed.” one. seen of a co- statement “In to admit order 801(d)(2)(E), they’re going Fed.R.Evid. conspirator under This statement conspira determined of what was must first is in furtherance make now a member existed, done, the defendant was the boat cy what was told on previously co-conspira conspiracy, and according evidence the United trip, ‘in furtherance made offered, thing tor’s statements that this whole States has Gesso, States conspiracy.’” United Riverside people, and the harness (en banc). Cir.1992) 1257, 1261 people. is harness Downs prepon proved must be Each element analysis, persuaded we are light of this evidence, review the and we derance clearly err court did that the district for clear er determinations district court’s admitting disputed statements.18 States, 483 U.S. Bourjaily v. United ror. erred also claims court 2775, 2779, L.Ed.2d 171, 176, 107 conspiracy as scope of the by expanding the beyond partic the victim well as its intended that, deny at Here, does not Blandford in his indict conspiracy offense detailed ular Bronger, a con- McBee and least as between asserts that Specifically, Blandford ment. deny existed; nor does he spiracy to extort conspiracy from the the court transformed the con- furthered Bronger’s statements that into prevent legislation one to breed-to-breed Instead, was that he he contends spiracy. entirety. in its at the horse bill one aimed The dis- not, himself, conspiracy. part of court, Moreover, argues, de the contention, Blandford’s rejected trict court targets extortion of the termined the stating: people,” not River conspiracy were “harness conspir- a[of is evidence I think that there provided for indictment. Downs as side trip; [Bland- I think acy] on the boat mischaracterizing By the nature thus trip and the money knew the ford] took the district Blandford submits conspiracy, coming everything that money and jury equate only to “allowed court people. from the harness from McBee was lobbying [horse bill] on the legitimate involved with a bill deal And there’s ” (appel corrupt lobbying on ‘breed-to-breed’ capacity and it was in his people, harness 23), gov also brief at but enabled lant’s conspired at least legislator. So he as a jury a vast on the “to unload ernment this, money. to take to do with Mr. McBee should of otherwise amount evidence further, preceding tape or Now (Id. 24.) been inadmissible.” at have this, that’s on tape prior one [at tells Blandford videotape, charging McBee when ‘the “A variance occurs dinner], going to T am take February unchanged, 20 but are indictment]’ [of terms okay with Bronger next. Is that materially care of proves at trial facts the evidence says, ‘Fine.’ you,’ and Don indict- alleged in the from those different Hathaway, un- is an 798 that indicates there v. Now ment.” United States (6th Cir.1986) amongst 902, (emphasis and Bland- add- derstanding McBee F.2d 910 get ed). cannot, however, going to some as Bronger is serve ford that A variance doing something, too. for unless the defendant’s for the basis reversal Id. rights” have been affected. conspiracy “substantial if look like Now doesn’t turn, rights, in are af- at 911. “Substantial legislator for some reason to influence given weight the co- jury little pointed must have out Additionally, as the district court implicating the defen- conspirator for a denying motions statements order Blandford's in its acquittal, conspiracy. discern judgment the admis- The court can of dant in the new trial and a bearing Bronger’s permitting on statements had prejudice of little the defendant from sion no noted: jury's presented court decision. The to the ultimate to be these statements body evidence on entire the context the basis jury's itself defeats verdict acquit all four counts. argument. order to [Blandford’s] omitted.) (Footnote charge, conspiracy on defendant States, only ‘preju- theory. McNally v. when a defendant shows See United feeted trial, 2875, ability to his to defend himself 107 S.Ct. 97 L.Ed.2d 292 dice (1987). trial, general McNally, fairness of the or to the to the the Court held that the subsequent statute, sufficiency to bar indictment’s mail fraud 18 U.S.C. “lim ” prosecutions.’ scope protection Id. The defendant has the ited in property 2882; proving rights.” the existence of a burden variance U.S. at 107 S.Ct. at Kerkman, that such variance is “fatal.” Id. see also United States (6th Cir.) (“[McNally held that ] record, on our review of the we are Based applies only [§ 1341] to schemes or artifices arguments unpersuaded attempt which defraud or to defraud some Indeed, government a fatal variance. as the something money property.”), one or observes, correctly Count of the indictment 493 U.S. allegations is not as limited its as Bland- such, L.Ed.2d 59 As the Court deter in- ford have this court believe. For would inapplicable mined that the “was statute stance, alleges that Blandford “con- Count designed ‘people schemes to defraud or the spired property of another” without to obtain rights, intangible such as the specifying that Riverside Downs was the right perform to have officials their possible property. source of such Because Kerkman, honestly.’” duties 866 F.2d at that a variance has not occurred we conclude govern 879. Blandford further contests the ease, not consider the instant need finding ment’s basis fraud the instant whether and what extent Blandford’s sub- mishandling action —his funds. rights impaired. have been stantial Kentucky pro He claims that law does not using campaign hibit an elected official from B. personal funds for use when that official con challenges Blandford also his RICO convic- tinues to seek re-election to the same office. It a crime under for tion. RICO however, Again, Blandford’s claims are any person employed or associated without merit. As to his assertion that the in, any enterprise engaged or the activities government intangible rights on an relied affect, foreign or com- of which interstate theory, agree we with the district court that merce, participate, directly or to conduct “ignores plain language Blandford the of the indirectly, in or the conduct of such enter- indictment.” The court went on to state: prise’s through pattern affairs a of racke- predicates specifically allege “The mail fraud teering activity or collection of unlawful illegally that defendant obtained debt. $6,518.50 Campaign from the Fund and its 1962(c). § Supreme 18 U.S.C. The Court beyond an contributors. This is doubt alle- has set forth the elements that must be gation that the defendant used the mails alleged in order to state a claim under fraudulently further a scheme to obtain mon- 1962(c) “(1) (2) follows: conduct ey.” (3) (4) enterprise through pattern a of racke- Sedima, teering activity.” S.P.R.L. v. Imrex Similarly, reject we Blandford’s con Co., 496, 3276, 3286, 479, 473 U.S. 106 S.Ct. proscribed tention that his actions were not (1985) (footnote omitted); 121.180(10) 87 L.Ed.2d see Kentucky under law. Section Fletcher, 897, also 905 F.2d Kentucky provides in Revised Statutes Hofstetter (6th Cir.1988). pertinent part: assignment Any unexpended In his first of error of funds not oth- relative balance conviction, argues obligated payment for of ex- his RICO Blandford that erwise predicate penses political his mad im- incurred to further a issue acts of fraud19 were shall, permissibly rights” candidacy person at the “intangible based on an or the of a requires proof 19. “A for mail fraud intended to conceal the fraud are considered conviction (1) (2) a scheme which to defraud involves be in furtherance of the scheme. United States v. use (3) purpose executing Lane, 451-53, 725, of the mails 733- Castile, scheme.” United States v. 88 L.Ed.2d 814 (6th Cir.1986). Mailings that are 1277-78 Indeed, committee, even his chief the record. es- belied of the candidate election assistant, Guy, testified that Treasury, returned administrative the State cheat to or, routinely in the case send cam- rata to all contributors office would pro Blandford’s candidate, appropriate be transferred partisan reports to the state paign of a finance political committee through the executive mail. See county offices a member candidate is party States, 1, 8-9, of which the 347 U.S. Pereira v. United committee, candidate, or an except (1954) that 362-63, L.Ed. 435 may retain such (“Where knowledge further an act with funds one does official to seek election political issue or the same in the mails will follow ordi- the use of the same business, office. such use nary or where course of added). simply, find foreseen, (Emphasis though Stated not reasonably be even can provision interpretation of this intended, then he ‘causes’ the mails actually 121.180(10) may While section used.”). Moreover, untenable. Blandford con- to be prohibit the use of by its own terms not have hand-delivered ceded that he could purposes, personal campaign funds for report he January because was legitimate uses clearly does list four different Assembly at with the General in Frankfurt funds. such evidence, short, albeit cir- the time. sense, readily instant cumstantial, support In this case sufficient to upon ease distinguishable from a reports at issue jury’s determination relies, States v. United mailings and that the had been mailed Pisani Cir.1985). (2d F.2d 397 defendant fulfillment of the to the successful essential successfully argued for the reversal of Pisani fraudulent scheme. ground mail fraud conviction on the conviction, on his RICO In his final attack prohibit candidate York law did not New Blandford maintains personal pur- using campaign funds for the existence of an “enter- failed to establish observed, fact, there poses. as the court predicate did not prise” acts and that any way limited statute that in was no state activity. racketeering “pattern” establish surplus campaign regulated use of Supreme defined and distin- Court hand, Here, does on the other there funds.20 instructing concepts in guished these that limits uses exist a state statute put: campaign funds can be which excess a conviction to secure under [i]n order uses set the four enumerated We consider RICO, prove must both the Government 121.180(10)to forth in section constitute “enterprise” of an and the the existence To be permissible of entire universe uses. racketeering “pattern of activi- connected sure, provision, an elect- consistent with this entity, pres- an for ty.” enterprise The unspent campaign can retain ed official group persons of associated purposes ent a only funds, may if funds but he do so those engag- purpose of together a common for re-election ef- eventually further the official’s pattern of ing in of conduct. The a course fort. Blandford did not use the hand, is, activity other racketeering a re- in connection with funds at issue here by acts as defined a series criminal effort, did not act and thus he election by proved former is evidence The statute. Kentucky law. accordance with organization, or ongoing an formal infor- mal, by that the various asso- and evidence Next, argues that there continuing as a unit. The ciates function evidence that he foresaw was insufficient by requi- of the proved evidence latter is part of his fraudulent use of the mail as racketeering however, of acts of site number com- argument, scheme. Blandford’s by any person personal use which is acknowledge ed unre- that subse- The Pisani court did 20. holding political campaign a or the lated to a quent the state to the defendant's indictment party position.” at 773 F.2d office or legislature passed to address this had a statute provided provi- that this new ”[h]ad area of the law. The statute court observed that "[cjontributions during period a a covered received candidate sion been effect indictment, any hesitate to may expended we would not political Pisani's committee Id. here.” purpose. not be convert- affirm convictions Such funds shall lawful

703 bribes); enterprise. Thompson, v. by participants in the United States 685 mitted (6th Cir.) 993, (holding these F.2d 998 that refer proof used establish While may particular cases ence to “The Office of Governor of Tennes separate elements necessarily coalesce, enterprise permissible see” as proof of one does not under RICO), denied, 1072, “enterprise” is cert. 459 103 the other. The U.S. establish (1982). 494, racketeering activity”; 74 L.Ed.2d 635 district “pattern not the entity apart recognized court as much separate it is an when ruled that activity engages. pattern of in which it [t]he evidence was clear that the defendant enterprise of an at all times The existence employees in had several his office who separate element which must be remains performed constituent service for both his proved by the Government. Speaker constituents as of the House and Representative his constituents as for the Turkette, 576, 583, United States v. U.S. employees Fourteenth District. These 2528-29, 69 L.Ed.2d 246 101 S.Ct. performed various duties for the office (1981) (citation omitted); footnote see enterprise, including which constituted the 1961(4)(defining § RICO “en- also 18 U.S.C. racketeering some of the acts. The evi- individual, “any partner- terprise” to include supported jury’s dence conclusion that association, ship, corporation, legal or other enterprise an existed. entity, any group of individuals union although legal enti- associated in fact “pattern racketeering activity” A is com ty”). prised racketeering of “at least two acts of Here, activity, that one of which occurred after [October we are satisfied proving and the last of 1970] met its burden of both a RICO en- which occurred terprise pattern racketeering years activi- ten ... after commission of and a within activity[.]” ty. enterprise, prior racketeering of an act of As to the existence 1961(5); Visconsi, § see also v. Blandford contends “Office U.S.C. Vild Cir.), Representative togeth- for House District -, employed 121 L.Ed.2d er with the individuals therein” is U.S. 113 S.Ct. (1992). not, fact, gov “enterprise” pattern, the mean- To establish such a within 1961(4). points ing of 18 U.S.C. He out ernment must establish not least occurred, entity predicate physical was neither a two acts but also “rela “[t]here tionship predicates” nor and the the ‘Office’for House District between employed continuing activity[.]” “threat of See H.J. there ‘individuals therein’.” 81.) Co., Bell Tel. (Appellant’s Brief at Inc. Northwestern 229, 239, 2900, 106 L.Ed.2d Even were we to assume Bland- “ continuity ‘It is this factor charge legally ford was not in of a formal and plus relationship produce which combines however, cognizable entity, this would not be ” pattern.’ “Continuity relationship Id. and dispositive of the existence of a RICO enter analytically prongs distinct constitute two Turkette, prise. at 101 See 452 U.S. Vild, pattern requirement.” 956 F.2d at 1961(4), § S.Ct. at 2528-29. Under “associa 566. enterprises. in fact” also are deemed tions relationship operation by requirement The is satis The headed Blandford “ just predicate or represents instant action such an enter fied if the acts ‘have the same See, results, Qaoud, prise. e.g., purposes, participants, vic United States v. 777 similar (6th Cir.1985) (“A commission, tims, or otherwise F.2d 1116 state or or methods by distinguishing organization may or are interrelated character local office H.J., charged enterprise.”), istics and are not isolated events.’” properly as RICO (em Inc., 1098, 106 at 2901 89 492 475 U.S. added). Davis, (1986); Supreme use of phasis v. Court’s L.Ed.2d 899 United States (6th Cir.1983) (holding disjunctive suggests the Court 883 test of relatedness. county office constituted a RICO meant to craft a broad sheriffs Vild, J., (Guy, dissenting) F.2d at 571 enterprise defendants had used the See where disjunctive positions (noting that “the indicates that office and their therein to secure c. if the requirement is met the relatedness the same or similar predicate acts are assignments of Turning to the error ]”). ways[ light In of this of the enumerated under 18 at his conviction Blandford directs test, predicate acts that the we conclude 1001,21 argu § consider first his U.S.C. we sufficiently They related. dispute here were have been dis should ment Count public office purpose the use of had as their specify the state for its failure to missed fact, benefit, they, in result- and personal charge. 4 stat supporting the Count ments sense, the acts In this ed in such benefit. ed: sharing either similar be viewed as could ... being “otherwise or purposes 31, 1992, or results in the or about March On by distinguishing characteris- interrelated Kentucky, Franklin Eastern District would Again, either characterization tics.” County, Kentucky, in a matter within the H.J., Inc. test. satisfy the broad Depart- jurisdiction States of the United ... [FBI] and the

ment Justice BLANDFORD, defendant, Vild, J. length the DONALD discussed at false, willfully knowingly make Continuity, did and we re continuity requirement. fraudulent, and fictitious material state- marked, representations to [FBI ments concept open-ended both a closed- “is is, agents], that on or about the above date period of re- referring to a closed either gave a BLANDFORD false DONALD J. conduct, by past conduct that peated explanation monies he had received future with a projects into the its nature n February MeBee on William may plaintiff repetition.” threat 11, 1992, Capital at the Plaza and March showing continuity by a series of prove Frankfurt, Kentucky. Hotel in occurring past predicates over related any authority, time. A few months Blandford period citing extended Without usually ruling A second our in a period urges is not sufficient. this court to extend continuity case, establishing Eddy, is to show v. perjury § means of United States nature, (6th Cir.1984), by “in- their to this predicates, 737 F.2d 564 long-term perjury racke- “in dispute. Eddy, threat of we stated that volve a distinct way cases, A activity.” guessing ... third is tolerated teering [in ‘[n]o continuity allege case is to and the prove drafting perjury indictment] of a regular way of allegedly perjuri- are a “predicates [that] must set out the indictment ongoing legitimate objective conducting truth defendant’s ous statements and conducting participat- falsity claim of ... or of stark contrast so that the business ongoing legitimate charge.’” ‘RICO Id. at ing in an to all who read the clear ” enterprise.’ omitted) (citations (quoting “The basic Constitutional standard 956 F.2d at 569 Inc.). sufficiency of an indict H.J., Here, place judge which to predicates took years. ment is mandated the Sixth Amendment approximately six period over a requires indictment inform Moreover, that he testified saw ‘the nature and cause of the campaign funds the defendant of nothing wrong putting Piccolo, large United States accepting even accusation.’” personal use or with Cir.1983) (en (6th banc), 1234, 1238 cert. lobbyists. F.2d money from Under amounts of 2342, denied, 970, 104 80 circumstances, peradven- 466 U.S. S.Ct. beyond these it is (1984). As we stated United “projeet[ed] L.Ed.2d 817 conduct ture Blandford’s (6th Cir.1986), Gray, v. 790 F.2d 1290 repetition.” of States into the future with a threat represen- or or statements §'1001 fictitious fraudulent 21. Title U.S.C. states: 18 tations, any writing makes or uses false or or Whoever, jurisdic- any matter within any knowing the same to contain document agency any department or of United tion of false, falsifies, statement or en- fictitious or fraudulent willfully knowingly con- States $10,000 trick, scheme, try, more than or shall be fined not up by any or ceals or covers fact, false, years, imprisoned or both. any not more than five device a material or makes sequences, arguing 107 tests each of the U.S. grounds, 483 on other rev’d (1987): responses campaign “limited cash to 97 L.Ed.2d S.Ct. op- merely or “flat denials” as contributions” adequate notice provides An indictment analysis posed explanations.” An of to “false the defen- permits “when it a defendant to greater statements in their con- ‘significant protections dant to obtain text, however, both undermines assertions. jury grand of a indict- guarantee which the ” words, only In other do statements to confer.’ The suffi- was intended ment simply by pertain to more than contri- governed two ciency an indictment is of butions, they explain but also were offered to “preliminary criteria”: accep- (falsely) the reason behind Blandford’s [Fjirst, “contains the indictment whether jury question. tance of the funds in intended to be of the offense the elements determination, clearly reached the same one sufficiently apprises the de- charged, ‘and that we see no reason to disturb. prepared he must be fendant of what “ ” and, meet,’ secondly, ‘in case other challenge In his final to his him against proceedings are taken conviction, Blandford asserts that his state shows whether the record similar offense not “material” within the mean ments were may plead accuracy he to what extent ” Steele, ing of In we noted that: the statute. acquittal or conviction.’ a former purposes A is material for statement alia, Russell v. (citing, inter Id. at 1296-97 tendency 1001if it has a “natural section States, 369 U.S. United influence, capable affecting (1962)). L.Ed.2d influencing,” gov- a function to a entrusted Notwithstanding fact that the indict necessary agency. It is not ernmental precise forth the statements ment did not set actually influ- show that the statement Blandford, we find the indictment made agency, only that it had the but enced Gray. principles enunciated satisfied materiality A determi- capacity to do so. had alleged that Blandford The indictment subject de novo review on nation is that were false or material statements made appeal. knowing he had done so fraudulent and that (citations omitted). nature of ly willfully. It set forth the According Id. at 1319 as when and to whom Blandford, ‘materiality’ the statements as well “the claim specified that the they were made. It also [Agent] government could muster was Whit- activity within the pertained to an statements testimony Spurri- that he later asked worth’s agency. United jurisdiction of a federal See Spurrier gave to McBee for er whether $500 Steele, 34.) F.2d 1318-19 States Be- (Appellant’s Brief at Blandford.” Cir.) (en banc) § 1001 (discussing elements of already government “had cause the -, offense), facts,” adds, investiga- government’s he More inconvenienced, 116 L.Ed.2d 246 merely if it was tion was over, bill particulars revised bill at all. hindered a more detailed ac provided Blandford with argument is without Again, Blandford’s sup precise statements that count of the out, points Bland- government merit. As 4 of prosecution. § 1001 Count ported his inquir- prevented the ford Bland- presented therefore indictment materiality fully question into the ing more adequate notice of the offense ford with ques- during government’s objecting charged. he was which fact, tioning Agent defense Whitworth. counsel, objection, making this told the after maintains that the Blandford further Honor, question materi- sup court: ‘Tour against him was insufficient evidence is no reason for reaching ality yours. There jury’s its ver port the verdict. Subsequently, jury that.” defense dict, ques to hear specific identified three Agent during stipulated counsel Whitworth sequences and answer tion investiga- the FBI have testified that explanations for his re would gave false Blandford be- dealings continued February tion into Blandford’s at the ceipt of from McBee these yond 31 interview. Under the March 11 Blandford con- 20 and March dinners. circumstances, 1992, order, contrast, we find Blandford’s “contained the conten- same material, clause, provision were not termination tion that his statements the that ie., interception they capacity thirty that did not have the the would continue for unavailing. days investigation, tapes rather than ten.” of the influence 2,

February 20 dinner were sealed on March D. of the those March dinner were April sealed on 7. Blandford next asserts that the dis suppressing the vid trict court erred Blandford directs our attention to Wilkin- February tapes of the 20 and eo and audio son, prosecution which involved another particular, March 11 dinners. Operation resulted from BOPTROT. In Wil- tapes submits that these should have been kinson, argued sup- the defendant for the immediately they after made. sealed pression audiotape captured of an 2518(8)(a). § See 18 U.S.C. discussion between himself and none other Under Title III of the Omnibus Control Jay Spurrier. government than had 1968, Act of and Safe Streets 18 U.S.C. authorizing secured a court order electronic 2510, § may only electronic surveillance be 7, January surveillance on 1992. pursuant conducted to court order and in a provided expire that it requirements [This order] manner consistent with the would (1) government of Title III. When the con- earliest three dates: the last government intercepted ducts surveillance ... date on which the [18 electronic 2518(8)(a)requires § con- recording U.S.C.] “the conversations with the briefcase (2) device; intercept- days tents of ... communication fifteen from measured (3) by any by [Title III] ed means authorized interception; twenty-five days first shall, possible, tape if be recorded on entry measured from of the order. The comparable wire or device.” Fur- other interception order also stated that of oral thermore, types recordings these shall upon communications must terminate way protect as will done such objectives, attainment of the authorized recording “doctoring” or alterations. days not to exceed fifteen measured from Finally, integrity to ensure the order day investigative on which the law 2518(8)(a) § recording, requires also began enforcement officers first to conduct immediately upon expiration order, interception days of this or ten order, period or extension there- entered, after the order was whichever of, recordings such shall be made available was the earlier time. judge issuing such surveillance or- Wilkinson, 26 F.3d at 626-27. Pursuant der and sealed under his direction. Fail- order, government intercepted “immediately” recording pur- ure to seal a day discussion at issue on the the order was 2518(8)(a) can suant to result the ex- attempt obtained. The did not clusion of the evidence. subsequent interceptions, make and the Wilkinson, United States v. tape January was sealed on (6th Cir.1994) (citations omitted). case, Although apparently the Wilkinson court Judge Chief William accept posi was inclined to February Bertelsman orders on the defendant’s issued 9,1992, tape governing and March FBI’s tion that the should have been sealed February option consistent with surveillance activities the first listed in the dinners, (ie., respectively. January day and March 11 “The 7 order “the last on which 20,1992, February conversations”), provided government intercepted order that inter- ceptions findings. would continue until all communica- remanded case for further cases, intercepted fully Referencing, among tions were which revealed other the Fourth Suarez, activity the nature of the criminal and its Circuit’s decision in United States v. (4th Cir.1990), participants, days or ten after the first inter- 906 F.2d 977 ception days or ten after the order was en- U.S. L.Ed.2d tered, (1991), whichever was earlier.” The March the court stated: Judge reviewed Chief Ber- The has points court discussed hereinabove case the orders and concludes that findings telsman’s particular importance the out day period in for the ten orders extended regarding the circum- conclusions and for the first order and for, delay the instance of of, given the reasons and stances thirty day period in the second instance. re- beyond the immediate any period

for Judge During periods, Chief Bertels- these Wiretap or sealing under the quirement reports from interim status man received Acts. The district Control Crime Omnibus Attorney Walb- Assistant United States analysis no case made such in this court need to the saw no terminate ourn and clearly reasons for out its did not set and 20, February Accordingly, period. the case sealing in the instant finding that the imme- tape required to be sealed was within objectively timely or reasonable was following expiration of the ten troubled, diately the are meaning of the law. We the 11, tape was day period. The March gaps, moreover, clarity, the by the lack of immediately follow- itself, required to be sealed tape in the problems inherent and thirty day ing expiration period. of the the transcript thereof. purported well as circumstances, we would all these 20, Under tape sealed February was review appellate for very helpful 2, find it 1992. This was immedi- on March out court to set for the district purposes period forth in the ately following the set finding that the the reasons specifically However, the United States has order. of the timely and its sealing version was satisfactory explanation provided a accurate, “authentic, trust- particular objected to delay, has not the defendant deal with tape that worthy” portions 29, of the sealing February delay meeting Spurrier and between vital can and the court 1992 to March January 1992. on defendant prejudice to the defendant. discern no tape on was sealed The March Wilkinson, 26 F.3d at 628-29. 7, 1992, time was within April however, find Wilkinson not, deter doWe tapes were the order. These period of instance. Wilkinson differs in this minative timely sealed and the motion properly and signifi least two at bar at from the case denied. suppress will be Blandford, First, unlike respects. cant Thus, same are not confronted we Wilkinson, does not contend counterpart led the Wilkinson court problems that themselves, poor quali tapes, are of that the district court’s inter- find the remand. We Second, clarity. the district ty lacking in be, Judge orders Bertelsman’s pretation of their reason cases set forth in the two courts reasonable, correct, certainly if not explicit varying degrees of widely ing with elaborate on to further see no need district court Wil instance, For ness. analysis.22 well-reasoned court’s “I simply that think kinson declared sealed”; pro it did not properly tapes were E. authority or further “any recitation of vide govern at the takes aim next Id. at 627. The court added specifications.” “ ment, assistant claiming that United tape re admission of ‘[b]oth im prosecuted his case attorney who States a determination cordings at trial and co-conspirator evidence properly used the dis transcript are within accuracy of a as substantive evidence guilty plea v. Rob McBee’s States United court. of this cretion States But see United Cir.1983).’” (6th guilt. own inson, of his 707 F.2d Cir.1989) 817, 822 Lochmondy, omitted). Here, 890 F.2d (footnote how Id. 627-28 guilty pleas as evidence (permitting use markedly more ever, district court Gam States v. United credibility); witness’s to re forthcoming explaining its decision Cir.) (3d (same), bino, argument: ject timeliness case to establish ing needed in his propriety devices of the FBI’s Blandford contests disputed pay- actually that "au- had made His remark McBee of video surveillance. use alone, than ade- interceptions, were more dio quate,” ments. however, misguided, record- for video U.S.-, 415, 116 occasions. The first such occasion occurred L.Ed.2d during government voir dire when the stated: going “You are also to hear that [McBee has] case, recently United In a decided pled guilty, case, testifying and he is in this Carroll, (6th Cir.1994), States v. 26 F.3d 1380 plea agreement....” a and he has At this this court clear that the test made counsel, point, arguing defense the re- applied reviewing prosecutorial of claims mark pool,” had “tainted the entire moved to misconduct is that set forth United States quash panel. government the entire Bess, Cir.1979).23 v. 593 F.2d 749 Pur then purpose articulated to the court that its test, to the Bess suant ask whether the we informing panel plea the of McBee’s so, improper remarks at issue were and if jury, you completely ig- “to ask the impropriety whether amounts to Would the revers regard step anything say ible error. the nore simply With second he had to because the Bess court analysis, reason, its elaborated: you of that or would listen to his ” commonly complained-of “More ... Moreover, con testimony.’ government had duct will not rise to reversible error, notably prefaced by mentioning its remark flagrant, if it proof guilt is not where is panel guilt “[McBee’s] admission of over-whelming, where counsel does not ob plea guilty absolutely his not evidence ject judge steps where the trial in and and/or against Speaker Blandford.” are satis- We. jury.” Id. admonishes the at 757. Because that, incident, fied at least as to this we conclude that remarks Blandford cites government overstep did not its bounds.24 or, improper improper, were either not if not reversal, grounds reject argument other occasions Blandford cites Two premised alleged misconduct of the examples prosecutorial misconduct oc prosecution. during government’s opening curred and Blandford, According govern closing arguments. opening argument, In its engaged ment on misconduct numerous commented: why explained 23. The Carroll court this clarifica- The first factor includes consideration of tion was needed: judge gave "Since the Sixth Circuit appropriate whether the trial applied has at least three different tests for deter- cautionary jury. instruction to the Leon does mining improper by prosecu- whether remarks explain how these factors are to be bal- during closing arguments tor warrant new against step anced one another. The second confusing, trial. make To matters even more all factors, the Bess test involves three some of applied past three tests have been within the two overlap with the Leon factors: (footnote omitted). years.” 26 at F.3d reviewing considering improper A court two other tests to which the Carroll court re- prosecutorial flagrant remarks that are not Leon, ferred were established in United States v. to remand for a new trial if: (6th Cir.1976), 534 F.2d 667 and United States (1) proof guilt of defendant’s is not over- Thomas, (6th Cir.1984), respective- 728 F.2d 313 whelming, and ly. (2) objected, defense counsel and (3) the trial court failed to cure the error Although the court in Carroll observed that jury. with an admonishment to the clearly Thomas and Bess are another, at odds with one "flagrant,” Bess does not define nor does it manage it did to reconcile Leon and apply instruct what standard one is to to fla- Bess: grantly improper prosecutorial remarks. If we Bess Leon can and should be construed regard the first three Leon factors as elucidat- way mutually in a that makes them consistent. ing concept “flagrancy,” then the Bess require step approach; Both a two first we simply logical test is extension of Leon that prosecutor's determine whether a remarks instructs how the four Leon factors are to be improper, were and then we determine wheth- weighed in situations in which the error is not impropriety er the amounts to reversible error. flagrant. Regarding step, the second the Leon test in- Cairoll, (citations omitted). F.3d 1385-86 volves four factors: (1) whether the remarks tended to mislead accused; persuaded govern- prejudice We are further or to (2) extensive; properly they guilty plea whether were ment elicited McBee's isolated or on (3) fact, they deliberately expressly whether or acci- redirect. the district court had dentally placed jury; government's questioning, before the authorized the line of (4) strength against noting challenged of the evidence that defense counsel had credibility testimony. accused. of McBee's prohibiting prior court instruction now, Jay Spurrier violated you telling am But X spe inquiring into the government from boys. Both no choir are Bill MeBee if plea. Even we were of McBee’s participation cifies their admitted them have improper government acted that are await- assume the activity; of them both criminal instance, would not conclude want we still ly I don’t in this right now. So ing sentence Blandford warrants the relief is somehow that its conduct the United States you to think that the regard, we note loving them and In and seeks. guys embracing these substantially any preju They cured court great. district they are somehow thinking instructing jury that the charged dice to Blandford this man is exactly what did may you consider is, matters that engaging in extortion. are “[t]hese doing. that And credibility. determining McBee’s Mr. only for immediately af- government, closing, the determining guilt or inno And not for of its credibility of several discussing the ter the Tenth As Blandford[.]”25 cence of Mr. front, you up witnesses, “I told reiterated: explained: has Circuit are no saints. Bill MeBee Jay Spurrier, may plea not be guilty “A codefendant’s d[e]spicable in the They engaged same are of a defen- evidence used as substantive they bewill Blandford and as Don conduct testi- guilt_ If the eodefendant dant’s I don’t day. But that some for sentenced however, fies, government or either the we’re a minute that you think for want guilty plea may of a elicit evidence defense them.” asking you to embrace assessing the jury to consider for the govern object to the failed Blandford credibility as a witness.... codefendant’s however in both instances ment’s comments cau- prejudice, for potential of Because only plain error. and, thus, review we limiting jury’s use tionary instructions “authorizes standard plain error purposes permissible guilty plea to only particularly to correct Appeals Courts are critical.” seriously errors, those errors egregious Martinez-Nava, F.2d 838 v. United States reputa fairness, integrity affect Cir.1988) (10th grant (refusing to 411, 416 States judicial proceedings.” United tion promptly is court where district new trial Cir.) (3d (citing 200, Thame, 204 F.2d v. instructions) (quoting United cautionary sued 15, Young, 470 U.S. v. States United Baez, Cir. States (1985)), 84 L.Ed.2d 1983)). being “partic Far from L.Ed.2d 333 III. errors,” conclude ularly egregious opening during its remarks government’s A. credibility closing arguments went to and are assignments of error witnesses, among them. key MeBee subject to Also conviction. not limited his reversal, asserts, of the dis are several he alleged remaining example of in sentencing rulings. For concedes, trict court’s is, government as the misconduct court stance, the district argues he ex During its direct problematic. most under level by enhancing his offense MeBee, asked: erred government amination for his role sentencing guidelines guilty the federal required plead you “And also were (“If 3Bl.l(c) § offense. See U.S.S.G. arising out in the on the matter felony offense leader, man organizer, legisla the defendant was influencing your breed-to-breed activity any criminal supervisor ager, or responded: tion, correct?” MeBee isn’t that levels.”). fact, Bland- by 2 objection, ... increase “Yes, Upon sir.” defense counsel’s have been that he should had ford maintains court noted your brought attention essence, pleas guilty Later, its earli- repeated, court helping you how way decide only as one charge: er credibility use Do not was. testimony believable their Buel[] You’ve also heard III, They purpose. are not any MeBee. other Guy, Spurrier, William them for J. John anything these the trial else. heard that before evidence of You've also These pled guilty crimes. to certain three men granted maybe reduction fingernail clippers[.]”27 a two-level because he was even This however, merely participant” Spurrier’s testimony, graphically a “minor refuted to block tape footage McBee’s effort breed-to-breed showing video 3B1.2(b) (“If legislation. See id. the de- placing pocket, dollars into removing $500 participant it, fendant was a minor crimi- looking at it. The court surmised: levels.”). activity, by 2 nal decrease pretty at, “It’s obvious what looking he was saw, at least from what I so I think that Determining the nature and extent of the when he said he didn’t know how much mon- played role Blandford in the offense entails a ” ey got jury.... he ... I think he misled the inquiry, factual which we review The court also noted Blandford’s claim that Graves, clear error. United States v. 4 F.3d gave Guy money he campaign from his fund (6th Cir.1993). Finding no clear it, Guy when, fact, because had worked for here, reject error we Blandford’s assertion money compensate Guy was intended to requested that he was entitled to the reduc- incurring liability tax as a result of Bland- regard, agree tion. with the illegitimate Foley. ford’s loan to The court anything, court’s that “[i]f observation he correctly determined that in both of these played major role the Hobbs Act [of- instances Blandford obstructed the adminis- fense].” Nor do we disturb the court’s deci- justice tration meaning within the of sec- sion to enhance Blandford’s offense level un- tion 3C1.1. 3Bl.l(c). correctly der section The court Blandford, determined that as his own cam- treasurer,

paign C. supervised the activities un- derlying predicate mail fraud to his rack- challenge Blandford’s third to his eteering offense.26 sentence involves the district court’s en hancement of Blandford’s offense level for

B. position public his abuse of a trust. See (“If § U.S.S.G. 3B1.3 the defendant abused a challenges Blandford also position public private or trust ... in a court’s decision to enhance his offense level significantly manner that facilitated the com obstructing justice. § See U.S.S.G. 3C1.1 offense, mission or concealment of the in (“If willfully the defendant im obstructed or levels.”). by 2 Application crease As Note 1 peded, attempted or impede, to obstruct or explains: to section 3B1.3 “For this enhance justice during administration of the in apply, ment position of trust must vestigation, prosecution, sentencing or have significant way contributed some offense, instant increase the offense level facilitating the commission or concealment of levels.”). justifying its decision to im the offense....” The court articulated its pose disputed section 3C1.1 enhance reasoning imposing behind a section 3B1.3 ment, the court cited false statements Bland- enhancement Blandford’s case: explain ford made to his criminal activities.

First, observed, the court position “Blandford testi [W]e have a of trust mentioned in fied that he didn’t receive which Mr. Blandford was his cam- [own] treasurer, didn’t know what paign he received [from and without —and that 5, 5,000, 5, 10—didn’t even know McBee] subsumes that treasurer — received, what he said it could going things have been truthfully things do and file Foley 26. Blandford's double-counting assertion that was not in- multiple constituted both volved in the mail fraud scheme does not alter punishment.” 43.) (Appellant's Brief at Bland- our that a conclusion section 3B1.1 enhancement however, argument, ignores ford's that his inter- is in order. at one That least other individual view with the FBI and his conduct at trial inde- involved, namely, Guy, trigger is sufficient to hand, pendently support, on the one a conviction Kotoch, the enhancement. See United States v. and, hand, § under 18 U.S.C. 1001 on the other (6th Cir.1992). 954 F.2d They an enhancement under U.S.S.G. are, 3C1.1. them, "separate as the deems testimony Blandford contends that "this same occurring separate (Appel- incidents at times." was the substance of Blandford’s March 31 state- 46.) lee's Brief ment in Count 4 ... which the determined explanation'. was a 'false This enhancement Usually, at least one of the counts will fortunately, he And fashion. in a correct statutory adequate maximum in a manner not have campaign funds disbursed punishment permit imposition of the total submitted a law and then consistent with been, they as the sentence on that count. The sen- saying that had report mail, I tence on each of the other counts will then through the so think report went punishment at the lesser of the total adjustment appropriate be set 2-point that that applicable statutory and the maximum and circumstance. particular in this concurrently all be made to run may the one although Guy have been Again, longest part of the sentence. actually filling reports, he did so out the instructions. Stated pursuant to Blandford’s Here, properly the court adhered that Blandford simply, the court’s conclusion adjust dictates of section 5G1.2. clearly trust is not position abused offense level was 64 months. ed combined Williams, States v. erroneous. See United possible,” this sentence should “To the extent Cir.1993) (“The (6th 1224, 1227 993 F.2d imposed on Counts and 4. See have been finding regarding applica district court’s Newsome, United States finding factual 3B1.3 is a tion of section Cir.1993), error].”). for clear [reviewed (1994). -, 114 126 L.Ed.2d 698 S.Ct. 4, however, regard imposing to Count With D. possible given was not the same sentence argument, Bland- penultimate In his charge contained in the count carries by that the district court erred ford asserts statutory maximum of 60 months with it a and 60-month terms imposing 64-month correctly imprisonment. The court thus or 2 convictions on Counts imprisonment for his sentence to run concur dered the 60-month applicable sentenc respectively. rently imposed with the 64-month sentence maintains, ing ranges, Blandford id. on the RICO count. See 2 and 0-6 months months for Count 33-11 as Notwithstanding Blandford’s Count E. sertion, sen that the district court we find argu- three Finally, Blandford advances him in accordance with U.S.S.G. tenced court’s ments to contest district decision 5G1.2, part: provides § which relevant $108,356 his incar- him for the cost of to fine (b) by required law Except as otherwise pursu- imposed court the fine ceration. The (see (b)), 5Gl.l(a), im- § the sentence 5E1.2(i), § states: ant to U.S.S.G. count shall be the posed on each other punishment as determined accor- Notwithstanding provisions total of sub- Three, Chapter (c) subject section, Part D of dance with of this but section (f) herein, Chapter. Part of this provisions C of subsection the, impose fine shall an additional (c) court imposed on count If the sentence pay that is at least sufficient amount statutory maximum carrying highest any imprison- government of costs to the punish- adequate to achieve the total ment, supervised release or- probation, or ment, on all counts then the sentences dered. concurrently, except run to the ex- shall by required law. tent otherwise First, urges adopt Blandford this court that: Commentary to section 5G1.2 adds holding in United States the Third Circuit’s (“to- (3d Cir.1992) length of the sentences The combined 976 F.2d 155 Spiropoulos, v. 5E1.2(i) punishment”) is determined the ad-

tal (holding is inconsistent that section To the ex- justed offense level. Sentencing combined and violates Reform Act with the punishment is to be possible, tent the total Tur States v. process); due but see United Cir.) (7th on all imposed count. Sentences ner, (upholding on each cost- challenge), concurrently, except as re- counts run against similar fine of-eonfinement — sentence, denied, U.S.-, or as quired to the total achieve S.Ct. rt. ce (1993); required by law. 639, 126 States L.Ed.2d 598 United Cir.1991) F.2d 175 Hagmann, U.S.-, fine, (same), challenge In his last to his Blandford S.Ct. “improperly 121 L.Ed.2d 66 Blandford did accuses the district court of at- not, however, validity tributing challenge the of section Blandford’s net worth to criminal 24.) 5E1.2(i) sentencing. (Reply support United States v. conduct.” Brief at To (1st Carrozza, Cir.1993), accusation, quotes 4 F.3d 70 cert. de his the follow- - nied, -, ing during remarks made the court (1994), Circuit, sentencing hearing: the First faced L.Ed.2d 365 situation, with a similar stated: giving somebody money to think that And appropriate do not find it to answer We drinks, beer,- that, buy things like First, question present at the time. Maybe accumulates. that’s where all that object [the defendant] did not to his cost- property might came from. And that an- of-imprisonment fine at the time of sen- question, why somebody swer the would Hence, tencing. the district court had no imposed upon sell out the trust him. For issue, to focus on the lack reason we financial I remuneration is the answer that the benefit of its considered Ab- views. developed. think can be error, normally plain sent we will not con- Our review of the court’s remarks convinces sider issue raised the first time on us, however, they go to Blandford’s mo- appeal. Because the fine issue is one culpability, tivations and not his net worth. circuits, which has divided our sister reasons, foregoing For the the decision of alleged cannot see that the district court’s the district court AFFIRMED in all re- 5E1.2(i) assessing error fine was spects. “plain” meaning one within the of Fed. 52(b). R.Crim.P. NELSON, Judge, DAVID A. Circuit (citations omitted). too, We, Id. at 84 feel concurring. inappropriate, that it would under the cir- generally Judge Guy’s very I concur in ease, cumstances of this to consider the valid- 5E1.2(i). thorough opinion. separately, I write howev- ity of section er, express my understanding to scope of the Second, Blandford maintains that he quid pro quo requirement of the in extortion incapable paying guide is the fine. The campaign cases that do not involve contribu- place upon lines the defendant the burden of adequacy tions to discuss the of the proving pay that he is unable to a fine. jury district court’s instructions to the 1.2(f). claim, § 5E To bolster U.S.S.G. his respect. presentence report, Blandford cites the plurality opinion which determined that he had a net As I read worth Justice Stevens’ — $577,278 States, monthly only U.S.-, but a net cash flow of in Evans v. United $8, (1992), analysis as an well as accountant’s show S.Ct. 119 L.Ed.2d 57 it leaves ing joint quo that his and his wife’s total room quid pro net little for doubt that the worth, States, assuming accuracy report’s requirement McCormick United $150,000. figures, 1807, 114 was less than While we 500 U.S. L.Ed.2d 307 (1991), acknowledge that Blandford’s section not is' limited to cases where all of the 5E1.2(i) questionable go fine will create a financial strain for funds into the defendant’s family, campaign go him and his once the court deter coffers and none into the defen exist, ability pay pocket. certainly mines to does dant’s own That was Jus imposed always Kennedy’s actual understanding: fine “should be suffi tice “Readers of together today’s opinion difficulty cient to ensure that the fine taken should have little imposed, punitive.” understanding underlying with other sanctions that the rationale 5E1.2(e). fine, words, holding applies only § Id. other the Court’s not in cam cases, something paign pros should amount more than contribution but all — Here, merely at-, “slap a financial on the wrist.” ecutions.” Id. at U.S. S.Ct. J., persuaded Kennedy, concurring. we are not that Blandford has If this inter and, such, correct, reject pretation satisfied his burden must as we consider how 5E1.2(f). argument premised sharply quid pro require- quo on section focused the — acts_” at-, where, here, Id. S.Ct. at all of the U.S. is in a case ment (emphasis supplied). the defendant’s own gone into has $1,000 (In Evans, appears, a pocket. bar, at the defendant tendered the ease fund, campaign went to the defendant’s check proposed jury stating, among instruction $7,000 retained for the given in cash was things, that used these instruc- “[a]s other use.) personal defendant’s obtaining property ‘wrongfully from an- tions right’ ... color of official other under means concluded Justice Stevens knowingly and that Mr. Blandford deliber- in Evans satisfied at issue instruction ately agreed accept property from Mr. the of- requirement “because pro quo quid or others ... in return for Mr. McBee time when the completed at fense is promise perform per- or not payment in return public official receives regard- official or actions specific form acts specific official agreement perform for his ing legislation.” to breed proposed breed not an acts; quid pro quo is fulfillment of the ulti- (Emphasis supplied.) The instructions Evans, element of the offense.” mately given the district court omitted the -, (emphasis supplied). at 1889 “specific.” word I believe it would have been explained that Summing up, Stevens Justice preferable to include that term. today need that the Government hold “[w]e opportunity to on given an comment When public official has obtained only that a show court, the instructions drafted howev- entitled, know- he was not payment which er, counsel for defendant Blandford did for payment was made in return ing that the make an issue of the court’s omission I no reason to doubt acts.” Id. see official “specific” argued word Counsel referred to in the last that the “official acts” require govern- McCormick Evans acts” re- “specific official sentence were prove part “to as a of its case that ment to earlier. ferred mon[ey] property given ... in ex- change agreement promise per- contribution Even outside performing some form or refrain context, it, quid pro quo require- I take offi- (emphasis supplied), in this cial act” but pay- where the ment can be satisfied meaningful difference be- context I see no accepted exchange ment has been act,” and “an official tween “some official act” “specific” requested “specific” official act or a adopted by the court. It the formulation was power. That is of official what exercise “specific,” the word plain error to omit (“if jury in Evans a district court told the trial as a in the context of the and viewed money in accepts or public official demands I satisfied that error was whole am specific requested exercise exchange for [a] harmless. power, a demand or or her official such of his ... a violation of the acceptance strengthened my constitute^] in conclusion on the I am pay- closing ar- regardless by government’s Act of whether point Hobbs latter given immediately in the form of a after the court’s gument, ment is made at-, contribution,” jury. delivery to the The id. of its instructions 1884), money had been government argued the Eleventh Circuit that that is what “pas- in connection with a affirming given Mr. Evans’ conviction to Mr. Blandford in held affecting the har- specific piece legislation of by public a benefit a offi- acceptance sive industry proposed Bill the basis of a Hobbs ness cial is sufficient to form —House Bland- by that defendant that he is the Governor —and Act violation if the official knows being money was a had to know that the payment exchange for ford being offered the of a given exchange him in for the absence pow- to specific requested exercise of his official particular er,” id., provision that breed-to-breed quoting 910 F.2d (At last Cir.1990), legislation. the time the piece of and that is what Justice Stevens indicates, accepted, the record payment “the was clearly in mind when he wrote that had possible technically have been it would still completed at the time when the offense is thoroughbred procure to interests payment a in return for the public official receives adding the to the Governor’s bill perform specific official amendment agreement to for his by by provision pattern “sporadic A is not formed activ- kind of breed-to-breed feared interests.) subjected ity,” person and a cannot be racing the harness simply IX the sanctions of title for commit- jury, more- opening In its statement ting widely separated two and isolated over, government explained had Instead, “pat- criminal offenses. the term trial, “[ejxtortion, in this occurs as it is used requires showing tern” itself of a rela- official, Blandford, accepts a Mr. when tionship predicates between the and of the entitled, knowing money he’s not to which continuing activity. threat of It is this exchange him in being given that it continuity relationship plus factor of specific piece legislation specific or a influ- produce pattern. combines (Emphasis supplied.) ence he can have.” (emphasis Id. at 109 S.Ct. at 2900 very jury The was told at the outset (internal original) quotations and citations going “this is what the United States omitted). The turned to 18 Court U.S.C. Extortion, prove: accepting payment, 3575(e) required for a definition of what is knowing specific it’s in return for a act.” predicate to show that acts were related: (Emphasis supplied.) “[Cjriminal pattern conduct forms a if it em- returned to this theme in braces criminal acts that have the same or the rebuttal that followed the defendant’s results, purposes, participants, similar vic- closing argument. government argued tims, commission, or methods otherwise that Mr. Blandford rebuttal received by distinguishing are interrelated character- money piece legislation Bill for a —House istics are not isolated events.” Id. at potentially 749—that could have included a 240, Continuity 109 S.Ct. at 2901. can be provision, breed-to-breed but did not fact period repeated show either “a closed “And,” provision. govern- have such conduct, past ... conduct its jury, acknowledge[d] I ment told the “he projects nature into the future with a threat I took knew was repetition.” Id. at 109 S.Ct. at 2902. governor’s bill.” conviction, attacking his RICO Bland- argues predicate ford that the two acts —the misled, I am satisfied was not Hobbs Act conviction mail and the fraud —do I keeping believe that a breed-to-breed “pattern” sup- not constitute a sufficient to bill, provision out of the Governor’s or osten- port Although a RICO conviction. so, sibly standing ready try to do would be argues continuity that neither nor related- specific enough satisfy requirements shown, ness were the acts themselves and Although McCormick and Evans. I think using Blandford’s comfort with his office for “specific” that the omission of the word personal suggest repetition. ends a threat of unfortunate, jury charge I concur in agree majority I opinion thus with the conclusion that a trial is not court’s new continuity. My only disagreement issue of required. on the issue of the relatedness of the two predicate acts. QUIST, Judge, District GORDON J. Visconsi, dissenting. Vild v. 956 F.2d 560 Cir.1992), -, except I respects concur in all one with the (1992), L.Ed.2d 59 this Court opinion Judge Guy concurring and the pattern requirement held that was not opinion Judge My Nelson. sole dissent in complaint involving satisfied a RICO Flor

goes required “pat- to what is a establish ida real estate because the two series of purposes tern” for RICO. complaint actions outlined in the sufficiently Supreme spelled The Court out what was related to each other. The first required pattern purposes to establish a for of the two involved a scheme to defraud plaintiff by allegedly inducing of RICO in H.J. Inc. v. Northwestern Bell John Vild him Co., Telephone marketing 492 U.S. to enter into a real estate venture (1989). Surveying legis- attempting a club 106 L.Ed.2d 195 for Florida resort and then history, lative said: to force him out of business. Id. at 563. Court alleged illegal every act of involved almost fraud or misuse of funds The second scheme made to general that certain defendants can be described as for this same solicitations purchase purpose personal interests in the induce customers to benefit. —for The court held that the two club. Id. IAnd cannot conclude that there should be dispa- very purposes, different schemes had analysis a different Mr. because Blandford results, victims, different and different rate office, from, public distinguished used a It held “[t]hat means of commission. also example, private company, for to commit engaged in participants same some say criminal acts. This is not to our con- both lines of conduct does not alter public provide misuse of office can never predicate acts in the two clusion that finding basis for criminal acts to be related. are unrelated.” Id. at 568. schemes case, particular post-elec- In this Vild, majority like the in the The dissent campaign tion use excess funds to award bar, pointed out that the Inc. case at H.J. an assistant did not involve misuse of the disjunctive, used definition of relatedness power of his office. The fact that Blandford requirement the related which “indicates that campaign used funds instead of some other predicate if acts same or is met are the fund him entrusted to was incidental to the ways.” any similar of the enumerated If, act. in addition to the Hobbs Act convic- F.2d at 571. The dissent concluded tion, he had committed another act which they two schemes were related because had public power position misuse of is an participants the same of the defen- component, —some essential like election fraud or a in both Id. dants were involved schemes. violation, Act I second Hobbs would consider the acts related. case, majority In this holds that Bland- supported conviction under RICO is ford’s me, question, The seems whether pattern accepting in that both actions — distinguished the criminal acts are related as money legislation influencing for and con- achieving the vehicle for whether those verting campaign personal funds to use —are required If acts is the same. all that is is the they purpose related had as their acts, wrongful for same vehicle i.e. the gain. financial use office for very general descrip same defendants and a government charged with four purpose, charges tion of RICO’s criminal violation, in predicate acts —the Hobbs Act damages brought play can be treble into himself, which Blandford took any company against individual or that en fraud, acts of mail all of three which involved gages entirely in two different fraudulent the use of funds to Bland- award Menasco, Wasserman, Inc. v. schemes. See ford’s assistants. If the had based its (4th Cir.1989) (“If than RICO conviction on more one of the pattern requirement has force whatsoev fraud, ques- mail acts of there would be no er, prevent type ordinary it is to tion that the acts were related. being fraud from commercial transformed claim”). however, jury, determined that into federal RICO This result disregard holding the Hobbs Act violation and one of the mail would the H.J. Inc. by ‘sporadic allegations proved by pre- pattern fraud had been is not formed activi “[a] subjected ponderance ty,’ person acts are and a cannot be evidence. These addition, widely separated simply committing of title IX time. sanctions commission, victims, widely separated isolated criminal means of and the two 239, 109 purpose at 2900. results are dissimilar. The can be offenses.” U.S. at Accordingly, respectfully if it I dissent. described as the same is described very general public on a level as the use of personal

office for benefit. It cannot even be finan-

described as the use of office for gain provided

cial in that mail fraud act assistant, himself, with finan- gain. general description

cial This level

an insufficient basis for relatedness because

Case Details

Case Name: United States v. Donald J. Blandford

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 7, 1994

Citation: 33 F.3d 685

Docket Number: 93-6011

Court Abbreviation: 6th Cir.