United States v. Johnny Ray Graham

or exclusion of of the admission matter evidence, is to be

expert and his action manifestly erroneous.” unless

sustained Lines,

Salem v. United States 1119, 1122, 8 L.Ed.2d 313

(1962). argues mag Mrs. Cravens admitting

istrate abused his discretion expert testimony

Lt. Holland’s Specifically,

testimony speculative. complains that Lt. Holland

Mrs. Cravens inspected the accident nor Mi

neither site motorcycle. Federal Rule

chael Cravens’ 703, however,

of Evidence makes clear that rely upon expert need not first-hand long type he relies so

observation reasonably upon by experts

of data relied forming expert opinions.

in the field in

Here, Lt. Holland relied on the official acci report accompanying photo

dent

graphs. magistrate did not abuse admitting Lt. Holland’s testi

discretion

mony.

Finally, magistrate find that the we allowing

did not his discretion in abuse replica

county to introduce a of the “road sign: original sign longer

closed”

existed, replica photographs matched sign, magistrate original gave and the accompanying cautionary in

struction. judgment of the district court is

affirmed. America,

UNITED STATES

Plaintiff-Appellee, GRAHAM,

Johnny Ray

Defendant-Appellant.

No. 87-3534. Appeals,

United States Court of

Sixth Circuit.

Argued June 1988. Sept.

Decided Holbrock, Timothy R. Evans

Hugh D. Hamilton, Johnson, & (argued) Holbrock defendant-appellant. Ohio, U.S. (argued), Asst. Brinkman Kathleen Ohio, Cincinnati, plaintiff-appel- Atty., lee. GUY, KENNEDY,

Before CONTIE, Judges. Circuit Jr., Judge. GUY, Circuit B. RALPH defendant, Ray Johnny convicted juryA using Graham, four on counts intent communications with 18 U.S.C. sheriff, violation bribe Act), count (Travel 1952(a)(3) funds, in violation converting government the defend appeal, of 18 U.S.C. § evi was insufficient that there asserts ant convictions support dence its its discretion district abused issues, in evidentiary numerous rulings on entrap refusing charge, Act the Travel on instruction ment review, we Upon sentencing him. sufficient there was conclude convictions Graham’s errors in committed sentencing defend rulings or evidentiary However, result of as a ant Graham. in Math decision recent Supreme Court’s — —, ews United (1988), reverse we 883, L.Ed.2d holding that entrapment to an entitled the ele all of he admitted unless defense remand offense ments was suffi of whether determination entrapment to warrant cient instruction operation. I. checking Agent club’s After reiterating Dorton for a wire and his de- (Hank Tucker, Dunmon, T.D. Three men mand that Dorton pay- make a substantial Curry) open- interested in and Monte were ment to the sheriff as a condition of not nightclub County, White Tennes- club, enforcing against the laws Gra- see, patrons that offered its entertainment ham introduced Dorton to Sheriff McGhee. including prostitution gambling, and and meeting, At an initial Dorton and McGhee beverages. preparation In for alcoholic proposed discussed the club’s activities and venture, Curry suggested their business agreed it operations and was that Dorton defendant, they Johnny meet with would make a substantial contribution to Graham, Ray who was “well-connected.” campaign. McGhee’s re-election The sher- though liquor, gambling, prosti- Even and iff instructed Dorton that he should make illegal County, in tution were White Ten- payment but, rather, nessee, to him make it during Graham assured the men directly Thereafter, meeting to Graham. their first that due to his “close relationship” gave $6,000 County government with the White Sher- Graham in funds. iff, McGhee, John that such violations Graham informed Dorton that he would tolerated. Graham further in- money deliver the to Sheriff In McGhee. a formed Tucker that he had a source in subsequent telephone conversation, Sheriff supply Detroit who could them with the Agent told Dorton that he had drug crystal methamphetamine. Subse- money. received the quently, Sheriff McGhee met with the men introducing In addition to Agent Dorton forego and confirmed that he would enforc- Graham, to Tucker also introduced Federal ing against the laws in club return for Drug Tabar, Task Force Officer Carl who $3,800 a contribution his re-election cam- drug buyer pur- acted as a in interested paign. later told the men Graham chasing crystal methamphetamine. At an required they pay sheriff off his meeting, initial Officer and Tabar Graham $3,700 bank note in return for not enforc- purchase discussed the sale and of nineteen Dunmon, against law club. crystal ounces of methamphetamine. In Curry, pursue and Tucker decided not to sale, preparation for the Graham intro- plans opening their nightclub for a in suppliers duced Officer Tabar to Ernest County. White Tucker informed FBI Spence discussing and James Minor. After appeared Graham Sheriff McGhee drug’s purchase price, Minor delivered be involved in a scheme. eight powder, ounces of white which he Subsequently, Tucker introduced Gra- represented crystal methamphet- to be Special Agent Dorton, ham to FBI Richard amine, $4,000. $4,000 Tabar Of the posed wealthy who as trucking company a paid funds that Tabar investing money owner interested in in a Minor, $2,000 initially Graham received nightclub. meeting an initial between At introducing Spence Tabar to and Minor. Dorton, Agent Graham and Graham reit- powder The white was later found not to be representations erated his earlier that Sher- crystal methamphetamine ephedrine, but forego iff enforcing McGhee would non-controlled substance worth less than gambling, liquor, prostitution laws $150. nightclub exchange paying off 18, 1986, July grand jury the federal subsequent McGhee’sbank loan. At meet- for the Southern District of Ohio returned ings Dorton, Agent between Graham-and against a nine-count indictment Graham. liquor, gambling, Graham outlined how through charged Counts one six each prostitution aspects Gra- proposed using nightclub ham with interstate com- should Despite be handled. his munications the intent to Agent reticence to introduce with bribe the Dorton to sheriff, McGhee, Graham violation of 18 U.S.C. Dor- 1952(a)(3). charged ton had a number of Count seven § violating 922(g)(1) they by communications which with il- discussed U.S.C. § McGhee’s proposed legally transporting involvement firearm in interstate investigation. Fed.R. particular FBI in this indictment under he was while commerce 608(b) prohibits party Evid. eight accused Count offense. federal for a introducing extrinsic evidence crystal attempting distribute instances of prove specific 21of U.S.C. in violation methamphetamine, attacking or purpose of for the witness charged the de- nine 841(a)(1), count § See, e.g., Unit credibility. supporting violating 18 U.S.C. § fendant Vinson, ed States use, currency which converting, to his own denied, Cir.1979), 444 U.S. cert. States Government. belonged to the United (1980); 62 L.Ed.2d S.Ct. counts convicted Cir.1977), Young, There- States four, nine. three, one, two, denied, rt. 4205(c), the 18 U.S.C. after, pursuant ce (1978); Hug v. United 786 55 L.Ed.2d to the Graham court sentenced district denied, Cir.), cert. (6th 475 329 F.2d five of the for each penalty maximum 30 13 L.Ed.2d 379 U.S. he was convicted. upon which counts Accordingly, court did (1964). the district excluding discretion not abuse II. that Tucker’s proffered testimony Bown’s the dis that asserts credibility. affected his “schemes” prior evidentiary rul in several erred trict court that avers ings. Graham that Sheriff further avers permitted FBI improperly court district ex have been should statements McGhee’s regards testify with Dorton to Agent confrontation as violative cluded when intended he understood what clause, McGhee’s statements in that Sheriff contribute should Dorton that he stated as co-con admitted been should have i.e., campaign, re-election McGhee’s neither a he was since spirator statements voluntary contribution. a versus a bribe conspiracy nor were member did not findWe during or in furtherance made statements Agent permitting its discretion abuse In order es conspiracy. alleged of the his under regarding testify Dorton must be conspiracy, a tablish A statements. standing of the defendant’s persons two or more agreement between any other wit agent may, like offense or committing an together act opinion as form of ness, testify in the act in fur and an overt of offenses series state a defendant’s understanding of his States conspiracy. United of the therance 701; States United See Fed.R.Evid. ment. Cir.1974). (6th It Williams, v. 503 Cir.1985); Unit (3d DePeri, 963 778 F.2d v. con all the prove necessary to is not (11th Russell, 1243 703 F.2d v. ed States all of the other dealings with had spirators Cir.1983). conspirators that all the nor conspirators, v. States another. United knew specifically avers also Defendant denied, cert. Cir.), (6th 637 Mayes, 512 F.2d excluded improperly 670 45 L.Ed.2d the basis Bown testimony of James necessary that all is it (1975). Neither spe extrinsic constituted that it present at physically conspirators by a witness. instances of cific United agreement reached. moment into evidence proffered The defendant Cir.), Butler, an States he had testimony that Bown’s James 927, 100 S.Ct. denied, cert. investors with initial conversation earlier Although de (1980). L.Ed.2d building a concerning Dunmon Tucker con of a purpose know must un fendant Dunmon’s one of to assassinate bomb he know necessary it is not spiracy, that Bown’s averred rivals. ion plans, thereof, detailed scope the full motive possible testimony would purpose membership, or even operation, FBI and cooperation for Tucker’s conspiracy. members other that Tuck claim lend credence Shermetaro, F.2d States he and that credible testimony er’s case, the Cir.1980). instant In the aiding the motives possessed ulterior conspiracy of the was to elicit objective involving continuous course of conduct “campaign bribery form of bribes in the contribu scheme. Defendant further as- payments” or “loan return for not serts that tions” the interstate calls enforcing against the specific the laws owners and were not made with the intent to proposed nightclub. operators facilitate the of Sheriff McGhee clearly of record shows that Sher since none of the specific calls contained conspired bribery. iff McGhee and Graham to elicit references to Title 18 U.S.C. 1952(a)(3) potential night provides in the in pertinent part: bribes from investors enforcing as a condition for not club Whoever travels in interstate or for- During against the one of their laws club. eign any commerce or facility uses meetings, initial Sheriff McGhee acknowl commerce, foreign includ- edged Agent spoken that he had mail, ing the with intent to- arrangement of a with Graham about “campaign in return for contribution” over (3) promote, manage, otherwise estab- looking nightclub’s illicit activities. lish, carry on, promotion, or facilitate the Moreover, during conversation management, establishment, carrying Sheriff McGhee and Dor- between on, any activity, unlawful ton, acknowledged that Graham performs and thereafter attempts or to “campaign had delivered contribution” perform any of specified the acts in sub- 13, 1986, May to him. As late as Sheriff (1), (2), paragraph (3), and shall be fined Agent McGhee confided in Dorton that he $10,000 imprisoned not more than willing required would be years, not more than five or both. protection upon the condition that he re payments ceive continued delivered (Emphasis added). through find that there is Graham. We using Defendant was convicted of prove, sufficient evidence of record to at a telephone four interstate communications

minimum, agreement a tacit to elicit bribes bribery furtherance of a scheme. On potential nightclub investors. More 9, 1985, telephoned December Graham over, the confrontation clause of the sixth Agent Dorton and the two men discussed require amendment did not campaign Sheriff McGhee’s re-election unavailability court to show the of Sheriff his need for On contributions. December precedent McGhee as a condition to admit 12, 1985, Agent Dorton called Graham ting his out-of-court statements as a non- agreed the two men that Dorton would testifying co-conspirator. See United January meet with Sheriff McGhee. Inadi, States v. 13, 1986, Agent Graham returned Dorton’s (1986). Accordingly, 89 L.Ed.2d 390 telephone earlier call and the two men dis- admitting the district court did not err in nightclub’s gambling cussed how the re- Sheriff McGhee’sstatements into evidence. ceipts February would be laundered. On III. 1986, Agent Dorton called and the Graham two men discussed Sheriff McGhee’s re- Defendant further asserts sponsibilities nightclub’s in the activities. there was insufficient evidence Contrary protestations, to the defendant’s Act, his convictions under the Travel distinguish Travel Act does not between 1952(a)(3), converting U.S.C. and for § telephone and “returned” com- “initiated” government funds under 18 U.S.C. 641. § Moreover, the Travel Act does munications. specifically The defendant avers that his place mandate that conviction under the Act should be a violation of the telephone call to warrant reversed since the manufac es- telephone call need not be an Act. The jurisdiction by initiating tured three of the only need element of the scheme but sential four interstate calls and that the activity. or further the unlawful facilitate single remaining call not a interstate was authority, and we provides no The defendant sufficient basis for a violation under 18 any, that the term “use” 1952(a)(3) unable to locate U.S.C. are was conceals, receives, or retains Whoever solely refers meaning the Act of within it to his convert intent to with the same unpunished leaves calls placing knowing it to have been gain, use or telephone communications interstate of use stolen, embezzled, purloined or convert- re- activity an unlawful further ed&emdash; anyone covers call. of a ceiver $10,000or than not more be fined Shall facility to facilitate interstate uses an who (10)years, ten not more than imprisoned thereafter, per- and, activity unlawful or both.... in aid an act perform attempts to forms record, when The evidence charged and convict- thereof.1 was The defendant most favorable light abetting in a the conversion aiding viewed ed with course a continuous reveals on or about funds government, $2,000 government scheme, par- promotion arising out of December initiated wherein though drug “rip-off” in a ticipation drug suppliers agent paid four only two of undercover Gra- While, admittedly, meth- $4,000 crystal Minor Spence and communications. given word instead mentioned was amphetamine but never ham tele- ephedrine. of his course during substance “bribery” non-controlled Dorton, light in a record, viewed with when phone conversations dis- reveals government, permitted most favorable circumstantial working purpose Tucker, had been who infer trict investigation, told throughout FBI these communications content who was exchange for knew someone that he from Dorton bribes elicit crystal metham- gam- purchasing enforcing the interested telephoned then against phetamine. laws prostitution liquor, bling, found he had him that and told proposed Spence the operators of and owners the drug in a they sham could beat people that nightclub. Thereafter, met with “rip-off.” suf there was and find that further December We Tabar on Officer alleged the defendant’s to of what the sale ficient discussed converting government After the methamphetamine. for crystal conviction be 641 price Section 641. of 18 upon U.S.C. the amount agreed § under funds men eight part: transaction, Minor sold pertinent drug in provides the represented he which ephedrine, of ounces steals, purloins, embezzles, Whoever Officer metamphetamine, crystal to be or the his use knowingly converts or funds. $4,000 government in authority, Tabar another, or without of use $2,000 of received record, Subsequently, Graham any of disposes sells, conveys or participation funds government the the of thing of value voucher, money, or the ofAll drug “rip-off” scheme. in the or any Department or of United States establish inferences facts and thereof, ... or Agency added). has this circuit While (Emphasis analogous to 18 843(b), a statute § 21 U.S.C. defendant the whether part: addressed previously pertinent 1952(a)(3), provides in § U.S.C. order telephone call the have initiated must any person know- be unlawful It shall 1952(a)(3), this cir § U.S.C. 18 violated any to have intentionally communica- to use ingly or U.S.C. of causing violation or a committing held that or in cuit has facility in tion any acts the may act or where 843(b) of found facilitating commission § the separate merely it. use receives felony.... Each constituting call but the initiate does not See, sepa- McLernon, facility shall be 746 F.2d communication e.g., of a States v. United pur- For subsection. this Cir.1984). under act find (6th rate offense We subsection, the term "communi- telephone in poses of this arrangements over making of public any all facility” scheme, means regardless cation of a furtherance in the or useful used private instrumentalities call, constitutes initiates who pic- signals, signs, writing, transmission tures, meaning of the within "use” prescribed includes of all kinds sounds or Act. radio, wire, other mail, and all telephone, communication. means of, complied the conversion has substantially aided abetted trial court least, $2,000 32(c)(3)(D) funds in the with mandates of Rule ephedrine though sale of any express December it failed to make find ing disputed Tabar. or fact. Officer determination Ibarra,

United States v. 737 F.2d (9th Cir.1984), approval cited with IV. Fry, States v. Cir. avers that the dis 1987). comply court with Fed.R. trict failed The defendant further states 32(c)(3)(D) sentencing Rule Crim.P. him. the district court him improperly sentenced 32(c)(3)(D)provides: consecutive terms each of his four If the comments of the defendant and alleged Act, violations under the Travel testimony or the defendant’s counsel or 1952(a)(3). U.S.C. This has held circuit introduced al- other information them that, Act, under the Travel each use of an any inaccuracy in lege pre- factual facility in fur interstate communication investigation report or sentence the sum- activity therance of an unlawful constitutes thereof, mary part report separate punishable offense. See United shall, to each matter controvert- Jabara, States v. Cir. ed, (i) finding allegation, as to the make 1981). Accordingly, prop the district court (ii) a determination that such find- erly sentenced Graham to sen consecutive ing necessary con- matter multiple tences for uses of tele will taken into troverted not be account phone though communication facilities even sentencing. A written such record of promoted calls the commis findings ap- and determinations shall be single, non-continuing sion crime—a accompany any pended copy to and scheme to elicit bribes from investigation presentence report in exchange for Sheriff not enforc Bureau thereafter made available against night the proposed law of Prisons or the Parole Commission. operators. club’s The district owners specifically avers that impos did abuse discretion appropriate court failed make an Rule ing the defendant’s sentence which was 32(c)(3)(D) as to determination whether statutory penalty provided within the in participants had threatened the the he offenses which was convicted. Fry, trial. In v. 831 the United States (6th Cir.1987), recently F.2d 664 this court V. that, that held where a defendant asserts dis properly comply The defendant asserts that the the district court failed 32(c)(3)(D), provide in the refusing Rule “in trict court erred with the mandates of violation, entrapment on the process jury the an instruction order to show a due with charge. The grave defendant does defendant raise doubt as to the Act must failing veracity not that the court erred of the information show that assert in provide jury entrapment with an the court that false information the relied on charge converting determining struction the of Id. cit on the sentence.” trial, Eschweiler, dis government funds. Prior to the v. 782 F.2d United States (7th Cir.1986). A that he was of trict court instructed Graham 1387-88 review entrapment un an defense while not entitled to the record reveals that the district of the of the express finding less he all elements court failed to make an admitted Since, during of the the course any that the had made such offense. defendant trial, utilizing threats, denied the there indication that the dis is no for Sher any alleged in to elicit from trict court on threat bribes relied McGhee, district refused fashioning iff the court the defendant’s sentence. any entrapment in suggests jury the with the record that a trial Where recently, it well estab disputed struction. Until was rely upon did not informa court sentence, circuit a defendant lished this that fashioning defendant’s within tion

763 federal, cases, pending on state or of to all of the elements of the all must admit final, entrap yet with no ex an entitled to direct review he is fense before See, rule e.g., United States cases in which the new ception for ment instruction. Cir.1986); (6th 35 Prickett, past” the ‘clear break’ with constitutes a v. F.2d 1129 Whitley, 734 v. case for deter requires United States we remand the that Ranzoni, Cir.1984); States (6th United there was sufficient mination of whether denied, 469 Cir.), cert. 732 entrapment instruc an evidence warrant 228 L.Ed.2d S.Ct. U.S. inclined to find we be tion. While Mitchell, F.2d (1984); States United to war insufficient evidence that there was 847, 96 denied, Cir.), U.S. cert. since no witness such an instruction rant (1975). L.Ed.2d 68 either Agent Dorton initiated testified that rendering ver Subsequent illegal activity to the at the concept of an sentencing Gra concept dict and of mak nightclub or the proposed ren Court Supreme ham, States United pay or “loan ing “campaign contributions” v. United Mathews its decision dered in return for ments” to — —, activities, illicit overlooking nightclub’s Mathews, (1988). In L.Ed.2d posi in much better the district court for the Seventh Appeals Court States sufficiency than we are to evaluate tion denial district court’s affirmed Circuit presented and was evidence seeking pretrial motion petitioner’s make the determination further defense, ruling that entrapment an to raise de early ruling deterred the whether available was not entrapment might he presenting evidence fendant the ele all of not admit petitioner would presented. otherwise have he was for which of the offense ments find that we there Accordingly, while held Court Supreme charged. support Gra- evidence to was sufficient more one or denies if a convictions, ham’s he is for which crime elements evidentiary in its no errors committed entrapment to an charged, he is entitled Graham, re-we sentencing rulings and evi is sufficient instruction whenever determination for a the case mand jury could reasonable from which dence sufficient was whether there entrapped the government find that entrapment instruction an that warrant Cautioning that defendant. evidence was If such the Travel merely afforded agent a result presented as present facili or the opportunity trial should ruling, new then a insuffi would be the crime commit ties to charge instruction, particular as to this entrapment granted warrant cient to case for only. remanded Supreme Court at the evidence determination of whether instruct support an sufficient trial was Judge, CONTIE, Senior Circuit did in Mathews Court Supreme The ion.2 dissenting. deci its whether not indicate this case remanded majority has The retroactively. How applied be sion should there was suffi- of whether a determination holding in ever, Supreme Court’s Grif entrapment an to warrant cient 328, Kentucky,

fith charge. Be- Act the Travel on instruction (1987),that L.Ed.2d a determination that such I believe cause criminal for the rule “a new respectfully I dissent. speculative, be retroactively would applied to be prosecutions opportunity or facilities merely an case, afforded Supreme Court remanding 2. In insuffi- of the crime commission noted that: this But an instruction. such cient warrant alternative government contends an by the Court pretermitted question was affirming judgment below basis consideration open for will be Appeals, it support insufficient trial was evidence at on remand. that court entrapment. the defense of instruction an 888. agents 108 S.Ct. at course evidence Of — ruling I as a result of its and because In v. United Mathews (1988), speculation such is unwarrant- —, 99 L.Ed.2d believe that requirement ed, grant down the defendant a new trial struck I would the Court all must admit that a criminal on the Travel entitled before he is of an offense elements hold “We entrapment instruction. an denies one or if the defendant

that even crime, he is entitled elements more instruction whenever entrapment

to an from which

there is sufficient entrapment.” could find reasonable decision, reaching In

Id. at 886. defendant had intro noted Court ROLAND, Plaintiff-Appellant, Neal W. that he had “the evidence at trial duced entrap of his planned to adduce JOHNSON; Phillips, Perry Thomas n. 2. The Court Id. ment claim.” Toland, Foltz; Dale and Bernie suf of whether there was question left Defendants-Appellees. entrapment an to warrant ficient evidence by the open for consideration instruction 86-1737, 86-1852. Nos. appeals on remand. court of Appeals, United States Court case, the district In the instant Circuit. Sixth was not to trial that Graham prior ruled unless he entrapment defense to an entitled Argued Aug. 1987. the offense. the elements of admitted all Sept. Decided prevent- timing ruling may have of this presenting evidence ed Graham entrapment. Due to

support his claim nature of preemptive question con- ruling, I believe there was

fronting the court is not whether entrap- evidence to warrant

sufficient instruction, is evi- but whether

ment presented at

dence which was was such an instruc- warrant

trial which would Mathews, situation Unlike the

tion. presented apparently

where the presented he would have

the evidence claim, only can entrapment

support his to what evidence

speculate as if he had been allowed adduced

would have without present entrapment defense offense. elements of the

admitting all the remand, gives the district majority re- following instruction: “[W]e for a determination the case

mand was sufficient

whether there entrapment instruction on

warrant If such evidence a result of present

present or was should ruling, a new trial then I Because Ante at 763. granted_” only spec- could the district court

believe present was not to what evidence

ulate as

Case Details

Case Name: United States v. Johnny Ray Graham

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 9, 1988

Citation: 856 F.2d 756

Docket Number: 87-3534

Court Abbreviation: 6th Cir.