*3 MILBURN, Circuit Before MARTIN JOINER, Judges, Senior District Judge.* MILBURN, Judge. Circuit appeals his Jerry Williams conspiracy jury conviction and sentence under the Hobbs to extort and extortion Act, 371 and 1951. The issues 18 U.S.C. §§ are appeal in this the defendant raised deny- (1) court erred in the district whether re- special jury instruction ing defendant’s giving its instruction quest No. 1 and in of extortion under regarding the definition Act; (2) the district whether the Hobbs federal application in its court erred * Joiner, sitting by designation. Michigan, W. Senior United Honorable Charles Judge for the Eastern District States District matter; sentencing guidelines in this and Freeman and that he sup- Webb would not (3) right port to a fair trial Lafayette whether if “Fate” Thomas, by the Amendment as secured Sixth the Sheriff of County, Davidson rulings against denied as a result of the district was Planning it. Commission to admit and Jimmy exclude certain evi- member Vance told them that he follow, dence. For the reasons that we needed to know that Thomas did not have a problem affirm the defendant’s re- project conviction but with the before he could support time, verse and remand as to his sentence. it. At that Sheriff Thomas extremely powerful politician was an who I. lived across the street from the property in the Coronado Condominiums. A. FACTS *4 Freeman and Webb met with Sheriff William Freeman and James are Webb prior Thomas to the March Plan- Company the co-owners of Freeman-Webb ning meeting Commission pro- when the (“Freeman-Webb”), Realtors a real estate posed rezoning was to be first considered. Nashville, company city in the of Tennes- During meeting, their Sheriff Thomas told July pur- In see. of Freeman-Webb them any that he did not have reason to be chased a tract of land in the sec- Bellevue opposed project, to the they and that need- Nashville, Tennessee, approxi- tion of for However, ed community. to work with the mately Eight Sixty One Million Hundred 31, 1988, meeting at the March of the Plan- ($1,860,000). Although Thousand Dollars Commission, ning Freeman and Webb property apart- the was zoned P.U.D. for learned for the first time that Sheriff units, planned ment Freeman-Webb to de- opposed project Thomas was to the and had multi-use, velop property specifical- the for signed petition against even it. The re- ly commercial. company The real estate zoning approved by was not Planning the a line of credit of obtained Three Million Commission at the ($3,000,000) meeting. March 1988 purchase Dollars to and devel- op property. Shortly pur- the after the Thereafter, Freeman-Webb made a num- chase, the company also entered into a changes of proposed project, ber to their portion contract to sell the front of the including a decision to build homes on the property Company. to the Mitchell How- portion rear property the rather than ever, contingent upon the sale was the zon- apartments. They spoke awith number of ing property being changed of the from people сhange about how could Sher- apartments development. to a commercial iff position project on Thomas’ the and Nashville, County, Davidson Tennes- enlisted the aid of others to assist them see, rezoning requires approval regard. the person Joseph One such was Council, Metropolitan Shrum, approve agent which must the real estate who had han- changing zoning. Planning a bill If the dled the contract the between Mitchell approves rezoning, Commission Company a vote and Freeman-Webb. As Shrum of 21 approve council members must Jerry knew that defendant Williams awas If, however, rezoning. Planning Thomas, Com- close associate of Sheriff Shrum approve mission does not the rezoning, a met him if with Williams and asked of 27 Metropolitan vote Council members could talk with Sheriff Thomas about the required approve rezoning. to project. Under Williams told Shrum that he courtesy, however, an unwritten rule of if meeting day. would be with Thomas that Metropolitan Councilman in dis- whose again Shrum and Williams met later that property supports trict the is located day, same and Williams told Shrum that he rezoning, the other council members will assistance, could be of some but that support rezoning. also would cost Five Hundred Thousand Dollars ($500,000). In an property being effort to have their re- After told that was too zoned, Freeman and met project, Webb with a num- much for such a small individuals, including Metropolitan replied go ber that he Williams talk Gary get Councilman Odom whose district “his and A man” back with Shrum. property meeting day was located. Mr. Odom told was held third same be- had Thomas project and proposed time at which and Williams Shrum tween After influence. political deal great could be that “it Shrum advised Williams that he was Thomas told Sheriff Armistead Fifty Thousand Hundred for Two done” for Freeman- bill introducing the ($250,000). This information Dollars in it replied, “What’s Webb, Thomas Freeman and Shrum passed on then Tucker, whose Kevin Architect Thomas?” Webb. by Freeman-Webb hired been firm hаd Freeman, part of June first theAt portion of them, for a present assist traveled Shrum, individual another the councilman meeting between Memphis, inWhile Memphis, Tennessee. some architectural and left sheriff aside Freeman took Williams with development proposed drawings of talked with Mr. if he had him asked Thomas. “deal.” Free- and understood Shrum met with Tucker Architect get back he would told Williams man day. Williams same later that Williams later date. him at a left plans Tucker him the had with conver- Thereafter, telephone a series advised Williams Thomas. earlier with Freeman place between took sations have had to Freeman-Webb Tucker that up to June 1988. Williams side, and that help could that he told Freeman Williams *5 sup- have Thomas’ they did if not “dead” also told Thomas and with Sheriff him “consulting spoke of a then port. Williams him in a test show that could he Freeman right make the to “flow” which would fee” There- the sheriff. that he could deliver he, Tucker that also told happen and things Metropolitan after, meeting of the aat access Sheriff Williams, right the to had deputy sher- Council, observed a Freeman get rezon- to the was needed Thomas which that Fate Odom telling Councilman iff following this Immediately ing approved. are, you “okay this if was Thomas Freeman told meeting, Architect Tucker This he what meant.” you would know occurred. what had by Freeman and to referred event was rezoning was bill that the time the was in a conversation Around later Williams Armistead, Free- rezoning pro- by Councilman Freeman-Webb’s introduced recorded. real Planning Com- with to the a further conversation presented man had posal was 23,1988. Shrum, that At told Freeman time on June agent a who mission second estate de- sitting telephone was call from meeting, Thomas Sheriff a that he had received immediately adjacent to had asked front Williams on the row Williams. fendant were commissioners developers the and Shrum the table where the if Shrum asked indi- had commissiоn sitting. When him. Williams go the around trying to to the Freeman-Webb opposed project was that the viduals stated further stand, stood. Sheriff Thomas Sheriff to without project get approved going to again, failed rezoning proposal him, stopped the they had After Thomas and became convinced stop again. and Webb Free- once, Freeman and could project having their successful in could not be they defendant convinced man was unless Sheriff Thomas property rezoned capable Thomas were and Sheriff Williams supported they them. if project, and that stopping of demanded, the money paid the were not Thereafter, again made Freeman-Webb passed. rezoning would never bill changes to their of additional a number the di- decided seek They to project. also time, archi- period this same During Metropolitan Council approval of rect a conversations had series tect Tucker obtaining approval of rather than first Hornbuckle, good “Rip” Milton with George Armi- Planning Commission. explaining After Thomas. of Sheriff friend agreed stead, Large, at to a Councilman project was what to Mr. Hornbuckle them. rezoning bill introduce speak with to about, Hornbuckle asked contacting Sheriff After Sheriff Thomas. Armi- August Councilman On Tucker Thomas, informed Hornbuckle Thomas went to see stead support, something for Thomas wanted from the the street lived across conversation, During days, the next advised Tucker few and in a later Hundred Thou- Williams Freeman continued to talk that Thomas wanted One payment money about the ($100,000). It was Tucker’s and the need sand Dollars for Sheriff Thomas to talk to entire amount stat- Councilman understanding that the August 29, Odom. On go was to to Sheriff ed Hornbuckle Williams and Freeman met at Freeman’s The content of these conversa- Thomas. office, meeting videotaped. and this was by Tucker Freeman reported tions placed Thomas, Williams a call to Sheriff and Webb. part аnd Williams’ of the conversation can they Being convinced that could not ob- videotape. be heard on As Williams rezoning they pay if did not tain telephone held the so as to enable Freeman did, go jail if and that conversation, to hear the Freeman was able Freeman, Webb, and Tucker decided to re- recognize the sheriff’s voice. Sheriff port transpired to the law en- what Thomas told Williams that he had been August On forcement authorities. having getting trouble in contact with friend, 1988, they spoke with Freeman’s Odom, go Councilman and that he would Creamer, Harold “Ed” a United States Se- get his home and him out of bed to talk agent. passed Mr. cret Service Creamer necessary. him if As earlier indi- agents information on to of the Federal cated, Odom, being if a resident of the Investigation, following Bureau of and the situated, property district where agents FBI day, Freeman met with supported rezoning, the other council had occurred. informed them what support members would also Freeman, Webb, agreed and Tucker to al- courtesy. bill under an unwritten rule of low their conversations with day, Later that same Freeman and defen- recorded, and Hornbuckle to be Williams spoke telephone, dant Williams on the *6 and thereafter had a series of recorded their conversation was recorded. This con- and Hornbuck- conversations with Williams likewise had to do with Sheriff versation le. speak efforts to with Thomas’ Councilman 22, 1988, August Tucker Free- On and 30, 1988, August Odom. On Councilman meetings man had two with defendant again present not at the Belle- Odom was Williams, videotaped. of which were both Exchange meeting, Club and his ab- vue explained Freeman to Williams that sence was later confirmed support Gary of Councilman needed the telephone in another recorded con- Williams Odom, and that needed Sheriff Thom- with Freeman. versation supported as to tell Odom that he 31, 1988, August On defendant Williams project. Williams advised them that Sher- again with Frеeman at Freeman’s of- met try speak iff Thomas to would Odom meeting videotaped. also fice. This was meeting Exchange a of the Bellevue at explained Williams that Sheriff Thomas morning. following Williams also Club to had not been able contact Councilman payment discussed the of Two Hundred Odom, get if and that he could ($250,000) Fifty Thousand Dollars and said Odom, they get enough contact with Thomas did not to leave Sheriff want pass rezoning council votes to bill with- any “fingerprints” or evidence that he had support. placed out Odom’s Williams an- in the effort. been involved telephone call Sheriff Thomas other to 24, 1988, August On Freeman and from Freeman’s office and discussed telephone Williams had two recorded con- Again, Freeman matter with Thomas. although expressed versations Williams re- telephone. heard Thomas’ voice on the i.e., “funny phone,” luctance to talk on a a portion Payment of a of the Two Hundred telephone. ($250,000) mobile Williams advised that Fifty Dollars as a Thousand present Exchange was not at the payment Odom also discussed. down was before, meeting day again Club but that at- that Thomas could not Williams said “fingerprints” in tempts any would be made to talk to Odom. connection with leave Payment money rezoning. of the was also discussed. can be seen envelope, all of which meeting, defen- brown August 31
Following the in the looked videotape. Williams entering the was observed Williams dant videotape on the can heard envelope and be Metropolitan Court- at the office sheriff’s con- work.” Williams saying, “That will was The sheriff in Nashville. house to total that the amount firmed From the sheriffs time. at that present Fifty Thousand Hundred paid was Two Free- be Freeman office, called while Williams his ($250,000), also discussed and Dollars and Williams in his automobile. man was “legiti- from Freeman minutes, a letter and need for for a few talked Freeman also relationship. Williams from matize” back called Williams Freeman then in the should be inсluded suggested what re- was latter conversation his office. The letter. telephone later conversation corded. Twenty-five day, payment of the
that same office, defen- leaving Freeman’s Upon payment ($25,000)down Thousand Dollars restaurant where to a dant went Williams also discussed. envelope the observed with the in the restaurant. time he was 2, 1988, entire September On of- back to Freeman’s then went again in Free- Williams met Freeman Williams and being given videotaped he was fice where meeting, the two During this man’s office. requested from Freeman. he had of council letter again the votes men discussed agreement an meeting purported Thomas’ letter members and Jerry Freeman-Webb had the between Although Freeman with Odom. Hundred pay Williams Two ($25,000)in Williams Thousand Dollars Twenty-five ($225,000)to Twenty-five Thousand Dollars did payment, Williams for the down cash marketing project. research complete a money, there was not ask for the videotape rеad- office, seen on the can be and Williams Freeman’s outside someone heard office and ing letter Freeman’s suspicious about apparently Williams was saying, “That will work.” that individual. office, leaving Williams 3, 1988, Freeman’s After September On being driven agents TBI Mem- telephone call from was observed placed a
Williams Racing Tennessee offices Williams at residence. phis to Freeman However, into when he went Commission. that Thomas told Freeman Councilman offices, Williams Racing meeting had the Commission that the Odom met *7 containing envelope the brown that did take also advised not gone “okay.” Williams Upon leaving the him. money with Freeman defer requested that Odom Commission, was observed 6, Williams Racing rezoning September on on the bill action office. to Thomas’ by being driven Sheriff 1988, was to be considered when the bill Thereafter, present when Williams Thomas was Metropolitan Council. arrived, Thomas were and to and Williams Armistead Councilman Freeman asked talking briefly outside Thomas’ 6, September and observed the bill on defer action on envelope in his had the office. Williams complied. Armistead inside the sheriff's went hands when 8, 1988, Jerry September On himself, by still later left office. Williams Nashville, to Tennessee. Williams traveled However, envelope. carrying the brown Nashville, directly in he went Upon arrival thinner when envelope appeared to be office, and then took an to the sheriffs it was be- than he the sheriff’s office left and ride with Sheriff Thomas automobile in. fore he went employee the sher- Gilley, an Raymond 14, 1988, day before September one hour On department. Approximately iff’s meet, was to Planning the sher- Commission later, returned the three men to Dudley his with met at office office, went to Free- Freeman then Williams iff’s and Planning Com- meeting Phillips, a member of the videotaped During a office. man’s Fate Phillips told Freeman office, paid mission. Freeman Williams Freeman's at him, and that ($25,000) spoken with in had nоt Dollars Thomas Twenty-five Thousand rezoning in favor of the he not vote given in money was to cash. The Williams by payment money. told him that he could. been tainted unless Fate Thomas office, Thereafter, Phillips September was in Freeman’s de- on While Freeman re- Freeman, and this fendant Williams called ceived a letter from Jerry get severing was recorded. Freeman tried to relationship. call Williams On directly Phillips, 27, 1988, but September Williams talk Sheriff Thomas wrote he did not would not because Williams a letter to the Planning members of the any “fingerprints.” to leave want urging against Commission them to vote project. the Freeman-Webb On October following day, September on Gary Sheriff Thomas wrote letters to telephone call Freeman received a Odom, North, George Joanne and Armi- from defendant this recorded Williams. stead, urging them as members of the Met- conversation, telephone Williams told Free- ropolitan against Council to vote the Free- meeting man that there was to be a be- project. man-Webb Dudley Phillips tween and “some of our p.m. people” at 12:15 He also stated 5, 1988, On October Jerry meeting up by princi- set had been Williams was interviewed FBI TBI pals, Dudley Phillips and Fate Thomas. agents parents’ Memphis, at his home in Upon concluding the conversation with agents Tennessee. Williams told the Williams, agent Freeman called TBI Jef- Freeman, he knew and that Freeman had Long him frey and advised of the sched- tried to hire him in connection with Free- meeting. agents TBI uled observed Fate projects Memphis in man-Webb and Chica- Dudley Phillips together at go, Illinois. Williams he stated that did not p.m. 12:15 outside the sheriff’s office. At go to work for Freeman Mr. because Free- Planning meeting Commission held that Nashville, man him wanted to move to Ten- day, Phillips same voted favor of the nessee, potential because he had the project. Freeman-Webb making money present more em- ployer, and because Freeman’s оffer of em- 16, 1988, September only Prior to archi- ployment came in a short letter which tect Tucker and Webb were aware that thought strange. Although Williams cooperating Freeman was with law enforce- Williams said he received the letter from However, September ment officials. Nashville, Freeman in he stated that he did 17, 1988, Freeman had conversations open and read the letter until he was on personal attorney with their who had been airplane riding from back Nashville assisting Freeman-Webb in the Memphis. paid He stated that he had been personal attorney effort. Freeman told his ($25,000) Twenty-five Thousand Dollars cooperating had been with law en- lobbyists, cash Freeman to hire some forcement officials connection with the also said that he had turned rezoning project, that he had recorded cer- attorney he was sur- over to his conversations, paid tain that he had Twen- prised get cash. *8 ty-five ($25,000) Thousand Dollars to defen- Williams, Jerry dant money that the was he had Williams also stated that brief Thomas, linked to Fate and that an addi- Fate Thomas conversations with Sheriff payment Twenty- tional of Two Hundred project, but that about the Freeman-Webb ($225,000) five Thousand Dollars was to be primary project the never the reason was personal made in the future. Freeman’s Despite what the he went to see Thomas. others, attorney leaked this information to observed, stated that agents had Williams consequence, and as a Fate Thomas’ attor- day he received the from on the ney heard about what Freeman had said Freeman, to see he went Sheriff cooperating about law enforcement Freeman, seeing but that Thomas before officials. in his office. He never mentioned was not 20, 1988, September seeing On the Thomas after he received bill again Metropolitan money. being by Special at the After told was deferred the meeting Agent lying, Mason that he was the Council because Freeman and Donald Webb did not want a vote on a bill that had interview ended.
1512 re- monthly cost of the pay he that such spoke with day, Mason that Mr. Later timely This month. per Causey, $96.66 lease attorney, Mr. Williams’ appeal to followed. wanted Williams him that advised who ad- Williams then brief statement. make a about been untruthful that he had
mitted II. ($25,000) Dollars Twenty-five Thousand the earli- Mr. spoken with Mason when he A. taken that he had not He said day. er Mr. given Memphis and money to the argues first however, not, say what Causey. He did jury the instructions to district court’s the money. the had done with under the extortion what constitutes as to dis and that the Act were incorrect Hobbs successful never Freeman-Webb was denying erred the defendant’s rezoned, trict they were having property the 1. We request jury instruction No. special to the Mitchell property the to sell unable to de as a whole jury instructions ultimately review However, they were Company. adequately they fairly and termine whether pur- to аnother property the to sell able law to applicable submitted issues than for less profit, a but chaser for Horton, 847 v. States jury. property been made had would have Cir.1988) (6th (quoting Unit 313, 322 F.2d rezoned. 1352, Martin, 1361 F.2d 740 v. ed States remand, F.2d Cir.1984), 757 (6th HISTORY B. PROCEDURAL aff'd after 1029, Cir.), denied, 472 U.S. (6th 770 cert. 1, 1990, was an indictment February On (1985)). “It 3506, 636 87 L.Ed.2d 105 S.Ct. for the grand jury by a federal returned language to use error to fail is not de- in which Middle District Tennessee if the instruction by parties requested charged with was Jerry Williams fendant Hor and sufficient.” given is accurate as 1951, Act, violating 18 U.S.C. the Hobbs § court's A district ton, F.2d at 322. Freeman from William extorting money is requested instruction to deliver a refusal loss. of economic through the use of fear (1) a only if that instruction reversible who one of defendants was seven Williams law, (2) not sub statement of correct indict- in a charged multi-count RICO were actually charge by the stantially covered trial was May Williams’ ment. On (3) jury, and concerns to the delivered A his co-defendants. from that of severed trial important point so returned on supersеding indictment substantially impairs give it failure 30, 1990, in which defendant August States defense. United violating again charged with Williams Cir.1984). Parrish, 736 F.2d con- charged with Act and also the Hobbs Act, in viola- Hobbs spiracy to violate the the dis- insists that Williams 371. tion of U.S.C. § concerning jury instructions court’s trict in that inadequate Act the Hobbs September On they were jury that they did not tell jury, and on went trial Williams made find the defendant 18, 1990, required found September Williams was threat, and actual, implied expressed, or superseding an counts of guilty on both jury that instruct the 6, 1990, they did not he was December indictment. On Freeman to by William (41) forty-one made payment to a term sentenced *9 under have been made count, must of the with the terms defendant as to each months in- further spe-A or coercion. concurrently. duress to run imprisonment have inadequacies would that such Dollars Hundred sists of cial assessment One given court had counts, if the district cured and been ($100.00) imposed for both jury con- months, requested instruction (41) forty-one his after of service or actuаl threatened cerning the use of supervised re- placed on will be Williams request No. 1 jury The defendant’s years concur- force. period of three lease a for as follows: requirement was count with the rently each
1513
nied,
832,
122,
force,
105
83
469 U.S.
S.Ct.
threatened
terms actual or
The
(1984), the
de-
in these instruc- L.Ed.2d 64
Seventh Circuit
fear as used
violence or
threat,
com-
understood
cided that no
either direct or indi-
tions are to be
meaning.
rect,
monly accepted
proven
need be
to establish a violation
theory
of the Hobbs Act based on the
of
concern,
of anxious
Fear is a state
wrongful
In
use of fear of economicharm.
anticipated
apprehension of
alarm or
Lisinski,
exploited
the defendant
a restau-
necessarily refer to
not
harm.
It does
losing
liquor li-
in-
rant owner’s fear of
It
physical fear or fear
violence.
payments.
appeal,
to extort
It is
cense
cash
On
of economic law
cludes fear
[sic].
arguеd
by
government’s proof
that the
at
jury
the
find that
necessary that
fear was
trial showed no threat had been made and
threats of force or violence
mind; that in the
in the victim’s
that the victim’s fears of economic harm
created
for the
self-generated.
surveying
it was reasonable
circumstances
After
a
area,
the
such fear and that
to have
number of cases in this
the court
victim
ex-
of such fear to
directly
defendant made use
held that
money.
attempt to extort
tort or
wrongful
require
the
use of fear does not
mind,
although, in
the victim’s
given by the district
The instructions
threat —
usually implied
the
be
issue were:
court on this
threat —
—will
present.
wrongful
use of fear is
a state of anx-
The term “fear” means
exploits
if the extortioner
satisfied
apprehension of
concern, alarm or
ious
victim’s fear of economic loss....
harm,
includes fear of economic
and it
necessary that
damage.
It is not
loss or
Thus, the
need not
Id. at 892.
extortionist
prove
the fear of
government
that
responsible for the state of fear
be
consequence
of a
economic loss was
is
which the victim finds himself.
It
by the defendant.
direct
threat made
exploits
enough if the extortionist
that fear
necessary
government
for the
Nor is it
thereby
money or
wrongfully
obtains
actually crated
prove that the
Capo, 791 F.2d
property. United States v.
victim,
in mind of his
or
the fear
(2d Cir.1986) (fear
[sic]
need
1062
of loss
creating that fear.
responsible for
defendant),
by
created
vacated on
be
However,
proved
it must be
that
(2d Cir.1987)
F.2d 947
grounds,
other
817
exploit
fear of
intended to
(en banc) (evidence insufficient to sustain
of economic
alleged
victim. The fear
conviction);
692
Billups,
v.
United States
The mere
must be a reasonable one.
loss
Cir.1982),
denied,
cert.
F.2d
330
delivery
voluntary payment of
F.2d
essary
government
prove
guilty
the defendant
of extor-
To find
in the
actually created the fear
tion, you must find that the victim rea-
victims.”).
adopt the ra
minds of his
We
Lafayette “Fate”
sonably
believed
by the Sec
of these cases decided
tionale
power and influence to
Thomas had the
ond,
and Seventh Circuits.
Fourth
obtaining
prospects
victim’s
hurt the
zoning change,
if that fear was
even
is
proffered
Defendant’s
instruction
by
by
direct threat
not caused
insofar as it states
incorrect
“[i]t
defendant,
the victim was
jury
find that
threats
necessary that the
zoning change,
obtaining fear of not
created in the
force or violence fear was
gave money
defendant.
unless he
to the
pointed
As has been
victim’s mind....”
out,
may
harm
arise
the fear of economic
considered sim
The cases that have
defen
any action
independently of
challenges
instructions have uni
ilar
dant,
by “threats
need not
caused
and it
formly rejected them.
States v.
*10
enough if (7th Cir.),
or violence.” It is
Lisinski,
de
of force
fense. ...” investigation ed the of this case because agents already FBI TBI knew the & stated, review of a district As earlier relationship nature of the between true sentencing guidelines decision is court’s Freeman and defendant from Freeman’s clearly under erroneous conducted cooperation by the full as corroborated Deference is fact-finding. as to standard recordings. agents’ tape surveillances and application of the given to a district court’s They also the same means that knew guidelines to the facts. having been defendant’s statement about found, and defendant The district lie, $25,000 paid lobbyist was a to hire concedes, agents of that defendant misled they from surveillance that de- and knew Investigation the Federal Bureau had met Sheriff Thomas after fendant with Investigation the Tennessee Bureau $25,000 September relieving on Freeman him on October when interviewed facts, they already had the 1988. Since major defendant’s lies 1988. The list of Moreover, re- not misled. with (a) that Freeman includes the assertions government’s contention that gard to the him in with had tried to hire connection required failure to truthful projects but that he had declined certain lengths as ob- go it to to additional such (b) paid Freeman him employment, records, transcribing taining telephone (c) $25,000 lobbyists, to hire cash conversations, conducting some taped meet with that he did not interviews, appears thаt those additional 8, 1988, September going after to Free- finding out how aimed at interviews were $25,000 cash man’s office to receive cooperation of Freeman’s with the fact payment. question The crucial down Thomas’ at- government leaked to Sheriff statements, not made whether these false immaterial to the case torney, which is oath, im- “significantly obstructed or under against defendant. investigation” of this peded the official case. Indeed, govern it seems argument is not that defendant ment’s real argues that his false state- misleading anyone, but that succeeded in imped- significantly could not have ments cooperate his failure to confess government’s investigation of this ed the re government approached first investigation nearly when case because an in government to continue agents quired inter- complete when the decided to might have been vestigation that otherwise they already him. At time knew view *12 1516 lied to It is true that defendant Williams argument supported is not
shortened. This
5, 1988,
agents
3C1.1,
investigating
on October
and the
by any provision in section
4(b) specifically per-
Application Note
The but
authority
cites no
for it.
government
provided
investigating agents
mits lies to
guideline is on whether defen-
focus of the
significantly
impede
obstruct or
they do not
dant,
making material false
by actively
investigation.
if it could be ac-
Even
(and
by passive
not
a
refusal to
statements
cepted
defendant’s false statements
significantly
cooperate),
in
succeeded
impeded
investigation,
obstructed or
investigation. Failed at-
impeding the
obvious,
something by
we do not
no means
investigative
tempts
search-
to shift
signifi-
that defendant’s statements
believe
by the
light
are not covered
elsewhere
impeded
investiga-
cantly obstructed or
guidelines.
investigation
The facts are that the
tion.
942 F.2d
Rodriguez,
In United States v.
conclusion,
reaching its
of defendant was
11, 1991),
899,
the Fifth
Sept.
902
Cir.
tapes
practically conclusive сor-
use of an
held that a defendant’s
Circuit
expected
of Freeman’s
testimo-
roboration
during
his arrest and
a continu-
alias after
fooled
ny, and defendant’s false statements
ing investigation
support
did “not
no one.
adjustment
the alias did
[3C1.1]
important to calculat
“Findings of fact
investigation.”
significantly hinder the
ing
offense level or criminal
a defendant’s
Fiala,
States
power
stop zoning project.
to
—
-,
Cir.1990),
denied,
111
cert.
U.S.
3. Freeman testified that Odom said
709,
(1991);
176 testimony tends that the violates the hear- rule, 802, opin- say lay and the Fed.R.Evid. case, In this the district court re rule, violations, These ion Fed.R.Evid. 701. jected the defendant’s characterization that right alleges, deprived him of his attempting this was a case of “one con man against him in further man,” confront the witness to out con another сon and found rights. violation of Amendment his Sixth accepted responsi defendant had not bility. Application 2 to section 3E1.1 Note The district court admitted evidence provides: 4, 1, 3, 5, and 6 for the mentioned items adjustment apply This is not intended to government purpose allowing puts government to a defendant who state of mind and show Freeman’s fearful proof by denying trial to its burden of at testimony summa- its reasonableness. guilt, the essential factual elements of is rized in item 2 was admitted as relevant convicted, only guilt then admits Freeman’s the reasonableness of belief expresses remorse. prevent the re- that Sheriff Thomas could zoning Ms. North’s tes- put government to its Freeman desired. bur- 7, proof timony, mentioned in item was also ad- den of at trial and denied the essen- ground. guilt. court’s mitted on this tial facts of his The district 1518 Margaret A. Ber- rulings 4 B. Weinstein and evidentiary Jack
A trial court’s
showing ger,
Evidence
a clear
Weinstein’s
§ 800[04]
reversed absent
will not be
States,
(1988).
Bourjaily
v.
v. United
United States
See
abuse of discretion.
2775,
Cir.1988)
171, 182-83,
2782-
(6th
(per
107
Rios,
S.Ct.
842 F.2d
872
483 U.S.
denied,
(1987).
109
curiam),
U.S.
144
488
97 L.Ed.2d
cert.
(1989);
840,
Elec.
*14
Defen
of Fed.R.Evid. 701.
requirements
that
from the record
It is clear
authority
no
that casts doubt
dant cites
1, 3, 4,
in items
testimony summarized
the
court in this mat
action of the district
the
the
5,
to establish
and 6 was admitted
ter,
any error committed in the admis
hearsay
mind and was not
state of
victims’
It is
testimony is harmless.
sion of this
801(c)
because
defined
Fed.R.Evid.
as
question
the
of whether
harmless because
the
prove the truth of
not offered to
was
actually
influence in
Thomas
Sheriff
the extortionate
asserted. Where
matter
mat
zoning
was irrelevant: what
matters
exploits
victim’s fеar
alleged
scheme
thought he
tered was whether the victims
harm,
prosecution must es
the
economic
did.
mind as “an
state of
tablish the victim’s
Neuroth, 809 F.2d
v.
United States
charged.”
the crime
essential element of
denied,
(6th Cir.) (en banc),
339,
cert.
342
635,
Biondo,
643
483 F.2d
v.
United States
3190,
916, 107
678
96 L.Ed.2d
482 U.S.
S.Ct.
cert,
Cir.1973),
denied,
(8th
415 U.S.
error,
(1987),
this court stated
“[a]n
(1974);
1468,
have Appellant the evidence which evidence, posed to have entered into special of some unfair- In the absence surrogate being for unreliability, compliance Ar- offered as almost or ness person Thomas as a witness. of Evi- of Fate of the Federal Rules ticle VIII Compulso- compliance with The Confrontation Clause dence should constitute this evidence require- ry Process demanded that confrontation Constitutional admitted.... ments. circuits, in other allowed the admis- on and exclusion of evidence
The
the dis
of chart summaries.
Id. at 563.
relevancy is within
sion
grounds of
McLaurin
of the district court.
cretion
Defendant has
shown how the
Cir.1985).
Fischer,
F.2d
question unfairly prejudiced him.
charts
bearing on
had no
proffered evidence
thought they
were “clas
The district
of defendant
guilt or innocence
aids” and admitted them to aid
sic visual
impeachment pur
any
for
inadmissible
analysis
proof in
jury in its
had. not testi
pose because Sheriff
That action was well within the dis
case.
concerning
evidence
Admission of the
fied.
court’s discretion.
trict
plea
have confused
Thomas’
required
from
jury and
instructions
III.
was, in es
the evidence
court that
district
reasons,
foregoing
For the
AFFIRM
we
“con
sence,
potential for
irrelevant. This
respects
defendant’s convictions in all
issues, misleading
jury
fusion of the
REVERSE
sentence and
but
time,”
Fed.R.Evid.
...
waste
[and]
resentencing
consistent with
REMAND
in the exercise
amply justified the court
opinion.
this
testimony.
this
its discretion to exclude
JOINER,
Judge,
Senior District
*15
G.
сoncurring
part
dissenting
part.
in
into evidence
court admitted
The district
agree
I
should be
summarizing the events
conviction
charts
three
in the
22, August
and affirmed for all the reasons stated
August
occurred
However,
opinion.
I would not
8,1988.
majority
The charts consisted
September
resentencing.
I believe the tri-
from
for
compilation of information obtained
remand
a
records,
in cor-
records,
judge
clearly
was not
erroneous
sur-
al
telephone
limousine
to increase
veillances,
rectly applying section 2C1.1
tape recordings of the con-
points. The ma-
offense level
two
and William the
versations between defendant
essence,
although paying lip service to the
jority,
a
In
the charts were
Freeman.
review,
clearly
erroneous
standard
significant events
chronology of the
fails,
judgment,
give due defer-
my
days. Defendant
occurred on each of those
judge in this determina-
to the district
of this evidence
ence
argues that the admission
judge
The district
found
danger of unfair
tion.
error
because the
justice and that
out- defendant had obstructed
flowing
these charts
prejudice
from
agent
special
false statements to
value under Fed.
weighed
probative
government’s in-
significantly impeded the
R.Evid. 403.
This court
vestigation of the offense.
summary
charts
The admission
guess
attempt
second
should
discretion
is a matter within the
like this.
It is
sentencing judge in a case
court,
Campbell,
v.
district
States
the trial
give
wrong not to
credence
cert, denied,
(6th Cir.),
F.2d
1381
845
government’s as-
finding that the
judge’s
259,102
908,109
L.Ed.2d
S.Ct.
488 U.S.
investigation
the need for more
sertion
(1988),
in such matters will
whose decisions
It is
by the false statements.
impeded
of discretion.
upheld absent an
be
abuse
when
this court to determine
not for
Scales,
concluded tradition, circuit within this
tablished both may present- niently be part: examined in court provides pertinent 1. Rule 1006 chart, summary, or calcu- ed in the form of writings, record- The contents voluminous photographs lation. ings, which cannot conve-