United States v. ParadiesUnited States v. Paradies
- Reporters:
- Before:
- Tjoflat, Cox, Wellford
Defendants Ira Jackson,1 Daniel Paradies, The Paradies Shops, Inc., and Paradies Midfield Corp.,2 were convicted pursuant to a 133 count indictment charging them with various offenses arising out of the operation of the concessions at the Atlanta Hartsfield International Airport. The bulk of the charges involved mail fraud
Two fraudulent schemes were involved in the indictment. In the first, the government alleged that Jackson and D. Paradies, the largest subconcessionaire at the Atlanta airport, conspired to profit from Jackson‘s influence as an Atlanta City Council member and as the Commissioner of Aviation. According to the government‘s theory, Jackson used his political position to reduce the rent of the concessionaires, including the Paradies defendants, by very substantial amounts. In return Jackson, who allegedly owned an interest in the Paradies businesses, reaped benefits through payments from D. Paradies, which purported to be fees and dividends. In the second alleged scheme, which was much less complicated, D. Paradies and another subconcessionaire, Harold Echols, regularly gave cash to Jackson and other City Council members for favorable votes in matters before the Council in which the Paradies defendants (and other concession operators) had an interest.
The particular circumstances surrounding the fraudulent schemes were fervently disputed at trial. The facts set out below are those which the jury might reasonably have found from the evidence properly admitted at trial.
I. STATEMENT OF THE CASE
A. The Airport Concessions Program
The City of Atlanta owns and controls the Atlanta airport. From its opening in 1980, Dobbs Paschal Midfield Corp. (“Dobbs“) was the principal concessionaire, managing all the airport concessions under contract with the City. Dobbs contracted with various subconcessionaires, including the Paradies defendants, to provide food, merchandise, and services. The subconcessionaires paid rent to Dobbs based on the greater of a percentage of sales or a guaranteed minimum. In turn, Dobbs agreed to pay the city a percentage of sales or a guaranteed minimum of $240 million over
D. Paradies was president and principal shareholder of Shops, a major gift shop chain at airports across the country. D. Paradies was also president of Midfield, a company which contracted to operate exclusively the gift shops in the airport in 1979. Shops owned sixty-five percent of Midfield‘s stock, and the other thirty-five percent was owned by minority controlled businesses in accordance with the minority participation requirement.4 That
B. Jackson‘s Loan/Purchase from Goldston and Wilbourn
By the spring of 1985, D. Paradies’ relationship with the first minority shareholders group soured. At that point, the government contends, D. Paradies sought to include defendant Jackson as a minority participant in Midfield. D. Paradies and Jackson were close personal friends. In 1980, Paradies and Echols hosted the wedding reception for Jackson and his bride, Maudestine “Mimi” Simmons.6
In April of 1985, Paradies wrote a “personal and confidential” letter to Jackson requesting Jackson‘s assistance in obtaining space for additional shops in the airport. If the space was obtained by October 1, 1985, Paradies stated, the minority
Goldston told Jackson that he was experiencing financial difficulty, and purportedly offered to sell Jackson his stock in Midfield for $50,000. Jackson made a “loan” to Goldston for $50,000 through his wife Mimi, operating as Metro Consultants, Inc.7 The government maintained that the purported loan was, in fact, a purchase by Jackson of Goldston‘s interest. Indeed, Jackson‘s check to Goldston on his personal checking account specified: “For Metro Consultants—Purchase Stock.” The government also introduced agreements which purportedly transferred Goldston‘s Midfield stock in the name of AEI to Metro Consultants. On October 1, 1985, moreover, Midfield terminated its management agreement with Goldston and entered into a new comparable agreement with Jackson‘s wife. Mrs. Jackson was to render administrative assistance in return for her portion of the 1.1% management fee. Also, in order to qualify as a minority business, Metro Consultants had to be certified as a minority-owned company. Jackson asked the Atlanta Office of Contract Compliance to expedite the certification for Metro Consultants because his wife wanted to “buy out” Goldston
After Jackson had already distributed the “loan proceeds,” he appeared before the City‘s Board of Ethics for an opinion on the propriety of his “loan.” Jackson told the Board that he had loaned $50,000 to Goldston, and that his wife wished to purchase Goldston‘s and Wilbourn‘s interests in Midfield. He also stated that Wilbourn‘s “asking price” was $275,000. Jackson also testified that he had discussed the matter with D. Paradies. Jackson assured the Board that if the transaction were approved, he would not vote on any airport concessions matters, and that he wanted to be “up front” with the Board. Noting, among other things, that subconcessionaires issues came before the Council frequently, and that Jackson‘s interest could have at least an indirect influence on Council decisions, the Ethics Board disapproved of the proposed purchase. Such an acquisition by Jackson and his wife, the Board concluded unanimously, would violate the Code of Ethics and would result in a breach of Jackson‘s fiduciary duty to the City.8 According to the Ethics
After the Ethics Board‘s decision, Jackson entered into another disputed transaction with Wilbourn, who, according to Jackson, was experiencing financial difficulty.9 Purportedly, Jackson “loaned” Wilbourn $275,000 (the exact asking price identified by Jackson in his Ethics Board testimony) from Options International, Inc. (“Options“), a corporation created in the name of his son, Ira Jackson, Jr., but controlled by Jackson himself.10 The transaction was to be effected in two installments: $150,000 immediately, and $125,000 payable on May 1, 1987. Wilbourn used $50,000 of the proceeds to buy Goldston‘s stock, and transferred all of his and Goldston‘s interest in Midfield to Hartsfield Concessions, Inc. (“Hartsfield“), a company purportedly wholly owned by Wilbourn. The loan from Options was secured by all the revenue from Wilbourn‘s interest in Midfield. The stock in Midfield, Jackson claims, was never transferred to him as security
The government argued that this was a sham loan agreement so that Wilbourn, doing business as Hartsfield, would be the minority participant in Midfield “on paper” only and that Jackson was the de facto owner, reaping the full benefits of Wilbourn‘s interest in Midfield. There is evidence, together with reasonable inferences, that supports the government‘s contention. Jackson admits in his brief that, upon Wilbourn‘s counsel‘s recommendation, Jackson was given some control over the funds of Hartsfield, and that Jackson was authorized to accept payments directly from Midfield. Indeed, evidence showed that Jackson initially went to the Paradies company offices to pick up the dividend and management checks, which were made payable to Hartsfield, then later these checks to Hartsfield were mailed to Jackson directly. The evidence also showed that the first twenty-three Hartsfield management fee checks were personally endorsed by Jackson and ultimately deposited into his own personal bank account.
Between December, 1985, and March of 1992, D. Paradies paid Jackson, through Hartsfield, fees and dividends, more than $1,049,000, nearly four times the amount of the original $275,000 “loan.” After the minority interests were transferred to Hartsfield, Wilbourn never received another payment from the Paradies Companies, and he had no further substantial contact with Midfield. The government showed that Jackson had complete control
C. D. Paradies’ Involvement in the Loan/Purchase Transactions
The Paradies defendants claim that they did not know of Jackson‘s interest, and claimed that they were being prosecuted for making routine business payments to Hartsfield Concessions. (Paradies Co.‘s Brief at pp. 6-7.) The government showed, however, that when Jackson picked up his check, D. Paradies himself would occasionally escort Jackson to the pertinent office. Additionally, D. Paradies’ secretary testified that D. Paradies, Jackson, and others attended a meeting at D. Paradies’ office. During the meeting, she was asked to draw up an agreement wherein Jackson was named as a minority participant. Later, she was asked to substitute Wilbourn‘s name for Jackson‘s, and to perform the highly unusual task of destroying the documents that named Ira Jackson.
Evidence also showed that on at least two occasions when Paradies needed the signatures of the minority participants, D. Paradies’ employee sent the documents to Jackson, instructing him to obtain the signatures of Goldston or Wilbourn. See Govt. Exhibits 41, 42. D. Paradies’ employee testified that he sent them to Jackson because at that point “everything was going through Ira.”
In August, 1988, Hartsfield Concessions purchased McClinton‘s interest in Paradies Midfield for $11,000. At trial, McClinton testified that she was willing to sell because she had made almost no money from her venture. In fact, D. Paradies had instructed his employee to withhold McClinton‘s management fees or dividends because he “didn‘t like” McClinton. At the time of the sale, McClinton had accrued $11,455, of which she had no knowledge. After Hartsfield Concessions, via Jackson, paid McClinton the $11,000 purchase price, Midfield (via D. Paradies) paid Hartsfield Concessions McClinton‘s $11,455 in back dividends. After the transfer, the management fees paid to Hartsfield Concessions were increased to 1.5%.
E. Jackson Uses Political Influence to Help the Paradies Companies
From the early 1980‘s on, the subconcessionaires were engaged in efforts to reduce their rent at the airport. Many amendments to Dobbs’ contract with the City were made, reducing the rent that Dobbs charged the subconcessionaires, and in turn, reducing the revenues paid to the City from Dobbs. Jackson concealed his interest in the Paradies Companies, and used his position on the Council to advance the interests of the subconcessionaires.
In July of 1987, Jackson voted in favor of Amendment Number Five, which substantially reduced the rent charged to the subconcessionaires. The government claims that Amendment Five cost the city about $1 million. D. Paradies received $1.5 million of the total $2.3 million in rent reduction.
In 1989, Jackson supported another rent-reduction proposal
In October of 1990, the City‘s Commissioner of Aviation was to retire. The evidence showed that Jackson approached Mayor Maynard Jackson and asked to be appointed in the position. The mayor had heard rumors that Jackson had some kind of interest in an airport concession, but received assurances from Jackson he owned no such interest. Jackson was eventually appointed Aviation Commissioner.
Soon after he took his position, Jackson proposed that the City terminate Dobbs’ position as Principal Concessionaire and allow him, as Commissioner of Aviation, to take over the entire concessions program. The government claims that the program would have resulted in over $40 million reduction in revenue to the City. The proposal encountered substantial opposition, and Jackson became indignant toward opponents. The government claims that during the controversy, Paradies and Echols visited the Mayor and the City‘s Chief Administrative Officer to “lobby” them to stay close to
F. Jackson‘s Interest is Discovered
Shortly after the vote was blocked, the City Attorney and Mayor Jackson confronted Jackson about his interests. Jackson denied any financial connection with D. Paradies. On March 8, 1992, Jackson resigned his position, stating that “I now find that a loan which I extended to a sub-concessionaire at the airport some time ago, and which has long been repaid, has become an issue of concern.”12
Soon thereafter, D. Paradies wrote a letter to Max Walker, the acting Commissioner of Aviation, stating that he was
surprised and distressed to learn of Mr. Ira Jackson‘s alleged interest in and receipt of funds from Hartsfield Concessions, Inc.... At all times, Paradies Midfield has dealt with Hartsfield Concessions, Inc. through Mr. Mack Wilbourn, who represented himself to be the sole owner of Hartsfield Concessions, Inc.... Paradies is unaware of any alleged interest of Mr. Jackson in Hartsfield Concessions, Inc.
See Govt. Exhibit 106. The government claims that when the newspapers learned of the Goldston/Maudestine Simmons transaction, D. Paradies claimed that he did not know that Maudestine Simmons was Jackson‘s wife, even though he had hosted their wedding reception and “Mimi” was his own wife‘s close friend.
G. Direct Payoffs to City Council Members
The other scheme involved D. Paradies and his agreement to make corrupt payments with Echols to Atlanta City Council Members,
Echols testified that he made routine payments to Jackson, Buddy Fowlkes, and less frequent payments to Marvin Arrington, President of the City Council. Echols explained that between mid-1980 through 1992 he would meet Jackson for breakfast on Wednesday mornings at the Castlegate Hotel. Echols always paid for breakfast, and afterwards would pay Jackson several hundred dollars folded in a handshake. He had a similar routine with Fowlkes on Thursday mornings. Further, Echols paid for Fowlkes to fly back from vacation to vote for Amendment Six. Additionally, Echols paid for Fowlkes and his family to take a Florida vacation. As for Arrington, Echols paid him once or twice every two months, usually at breakfast, depending on what was before the Council. On two occasions, Echols paid Arrington to appoint Buddy Fowlkes to Chairman of the Transportation Committee. Echols paid $5,000 on one occasion, and $6,000 on another.
In 1987 and in 1990, D. Paradies allegedly reimbursed Echols for the payoffs. In 1987, D. Paradies paid Echols for “consulting fees” in three payments of $10,000 each. Echols did not do any counselling for this money. Although consulting agreements were drawn up, Echols told Ron Wright that the money was not for consulting, but was for political payoffs.
In 1990, soon after Echols had flown Fowlkes back to vote for
The evidence also showed that Jackson accepted a $5,000 payoff from Echols and another subconcessionaire, Dave Gammill. In December of 1988, Gammill allegedly brought $25,000 in cash to Echols, who distributed the money to Jackson, Arrington, Fowlkes, and others.
H. Proceedings Below
On July 9, 1993, a federal grand jury returned a 133-count indictment charging the defendants with various offenses. Counts 1-83 charged all the defendants with mail fraud (one count for each check) in violation of
At trial, Jackson denied the charges against him, maintaining that his dealings with Wilbourn, D. Paradies, and others were neither illegal nor fraudulent. He claimed he acted upon the
The jury was sequestered, and the case was tried for three straight weeks, including weekends. After six hours of deliberations, the jury returned a verdict of guilty for all defendants on all counts, except for Jackson‘s acquittal as to Count 129, and Wilbourn‘s acquittal. Jackson received 42 months in prison, a $7,500 fine and a special assessment of $6,500. Paradies received 33 months in prison, a $7,500 fine and a special assessment of $4,200. The Paradies Shops was fined $1,500,000 and assessed $16,600. Paradies Midfield was assessed $16,600. Jackson and D. Paradies remain free on appeal bonds. The fine imposed on the Paradies Shops was stayed pending appeal.
II. ANALYSIS13
A. Jury Selection
The district court‘s determinations regarding bias and undue hardship are reviewed for an abuse of discretion. See United States v. North, 910 F.2d 843, 909-10 (D.C.Cir.1990), modified on other grounds, 920 F.2d 940 (D.C.Cir.1990), cert. denied, 500 U.S. 941, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991).
A party challenging the jury selection process under the Jury Selection Act must make his challenge “before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier.”
The Paradies defendants, however, filed a timely motion under the Jury Selection Act and submitted an affidavit in support thereof. The Act requires that any motion filed pursuant thereto be accompanied by “a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of [the Act].”
Consequently, the Paradies defendants failed to satisfy the “sworn statement” prerequisite to a claim under the Act, and their challenge thereunder is precluded.
Even if we were to assume that Shepherd‘s affidavit satisfied the requirements of
The Paradies defendants claim that thirteen jurors, individually, were improperly excused for bias, and eight jurors
This court has carefully reviewed all of the questionnaires challenged by the defendants, and we find that the district court did not commit a substantial violation of the Act in excluding those jurors. With respect to those who were excused for bias, every potential juror either professed that they were badly prejudiced against one side, or they described a relationship that the court deemed inappropriate for a juror in this case.22 We find
Similarly, the court did not err in excluding the eight jurors for undue hardship. The Paradies defendants argue that the court allowed some jurors to use a hardship excuse for reasons other than those named in the statute. For example, juror # 290 was excused for having two small children, but her two children were sixteen years old. The Local Plan, however, allows a hardship excuse to potential jurors with children under ten years of age. The defendants also criticized the court for excusing some of these
We note that the district court in this case was faced with an onerous burden in arriving at an impartial jury in this high-profile case that was originally estimated to last four to six weeks.27 With great care, the court reviewed all of the returned jury questionnaires to rule out those jurors who would have been unduly burdened by serving on a case of that duration who admittedly would have been unable to render impartial jury service. Under these circumstances, the district court in no way hindered the random selection of juror names or the use of objective criteria in excusing jurors. Nor did the process result in impermissible discrimination or arbitrariness, and the defendants do not make such an allegation. In sum, the court did not commit a substantial violation of the Jury Selection Act, and the Paradies defendants are not entitled to a reversal on that basis.28
The Paradies defendants also claim, as a separate basis for
B. Propriety of the Convictions Pursuant to 18 U.S.C. § 1346
Jackson and the Paradies defendants challenge their convictions pursuant to
(1) Independent Duty
The Paradies defendants argue that because the Paradies companies had no legal duty to anyone to prevent Jackson‘s scheme from succeeding, then they cannot be held liable for aiding and abetting him in that scheme. The defendants rely heavily on Dirks v. S.E.C., 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983), and Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980), wherein the Supreme Court found that a defendant cannot be convicted for securities fraud (Dirks), or for aiding and abetting securities fraud (Chiarella), unless he breached a legal duty. Because the Paradies companies claim that they merely made routine, lawful fee and dividend payments to Hartsfield Concessions and had no independent duty to disclose anything about their shareholder‘s fraudulent scheme, they cannot
This court has addressed this issue in a recent case, United States v. Waymer, 55 F.3d 564, 568 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1350, 134 L.Ed.2d 519 (1996). In Waymer, the defendant was a member of the Atlanta Board of Education, and he used his status to award service contracts to certain companies in return for monetary benefits. Waymer was convicted of mail fraud, because he mailed payments to the contractors for the services they rendered. He contended that because the school system had a legal obligation to make those payments, the mailing of the checks to pay a legal debt could not provide a basis on which to satisfy the mailing requirement of
Although the Paradies companies routinely mailed out fee and dividend checks, the government showed that those payments were made in exchange for Jackson‘s political influence. Under the reasoning in Waymer, those mailings can serve as the basis for a conviction under
(2) Vagueness
The Paradies defendants also argue that
This question was also addressed by the Waymer court, and it rejected the same challenge on strikingly similar facts. First, the court reasoned that “[a] statute is not unconstitutionally vague if it “define[s] the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ ” Waymer, 55 F.3d at 568 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)). It should be plain to ordinary people that offering and accepting large sums of money in return for a city councilman‘s vote is the type of conduct prohibited by the language of
We acknowledge that a recent Fifth Circuit decision, United States v. Brumley, 79 F.3d 1430 (5th Cir.1996), may indicate to the contrary. We agree, however, with the views of the dissenting opinion by Judge Harlington Wood, Jr.:
By enacting
§ 1346 , Congress expressly extended the reach of the wire fraud statute to “include[ ] a scheme or artifice to deprive another of the intangible right of honest services.” I agree with the majority that the term “another” should be given its ordinary meaning and that the most common usage of “another” as a pronoun is “an additional one” or “one more.” Under my ordinary reading of§ 1346 , however, “another” can easily be read to refer to a state citizen where the perpetrator of the fraud is a governmental official acting in his or her official capacity.
Brumley, 79 F.3d at 1452. This circuit in Waymer has so held and the Fourth Circuit has agreed with that rationale in United States v. Bryan, 58 F.3d 933 (4th Cir.1995). See also United States v. Martinez, 905 F.2d 709, 715 (3d Cir.), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 595 (1990), for a further observation
The Paradies defendants claim that even if
(3) The Ex Post Facto Clause
Jackson claims that his convictions pursuant to
C. Jury Instructions
The Paradies defendants claim that the district court erred in instructing the jury on “specific intent” and in failing to give the “theory of the defense” instruction that it proposed at trial. We will address those issues separately.
(1) Specific Intent
The Paradies defendants first argue that the district court erred in charging the jury on specific intent, because it failed to require the jury to find that the defendants knew that their conduct was against the law, and that “ignorance of the law” is a valid defense because mail fraud is a specific intent crime. The court refused to instruct the jury in this fashion and, instead, instructed the jury that the defendants must have had the specific intent to defraud, rather than an intent to violate the law. Again, the Paradies defendants do not cite one mail fraud case to support their position. Instead, they cite to precedent that supports the general proposition that ignorance of the law may be a defense to a specific intent crime. See Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (antistructuring law); United States v. Schilleci, 545 F.2d 519 (5th Cir.1977) (wire fraud conspiracy); United States v. Davis,
While mail fraud can be classified as a “specific intent” crime, it is clear from a review of the pertinent case law that the defendants’ contention is unfounded. In mail fraud cases, the government need only prove that the defendant had the intent to deceive, and ignorance of the law is no defense. See Waymer, 55 F.3d at 568 (defendant need only show the “specific intent to defraud“); United States v. Hooshmand, 931 F.2d 725, 731 (11th Cir.1991) (intentional participation in a scheme to defraud); Pelletier v. Zweifel, 921 F.2d 1465, 1499 (11th Cir.) (“conscious knowing intent to defraud“), cert. denied, 502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991); United States v. Williams, 728 F.2d 1402, 1404 (11th Cir.1984) (specific intent to defraud); United States v. O‘Malley, 707 F.2d 1240, 1247 (11th Cir.1983) (same). The Second Circuit stated specifically, “The specific intent required under the mail fraud statute is the intent to defraud, ... and not the intent to violate a statute.” United States v. Porcelli, 865 F.2d 1352, 1358 (2d Cir.), cert. denied, 493 U.S. 810, 110 S.Ct. 53, 107 L.Ed.2d 22 (1989). Also, the Tenth Circuit has specifically held under similar circumstances that the district court did not err in instructing the jury that “every person is presumed to know what the law forbids.” United States v. Hollis, 971 F.2d 1441, 1451-52 (10th Cir.1992), cert. denied, 507 U.S. 985, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993). In light of the foregoing, we must reject the Paradies defendants’ argument on this point.
Next, they argue that the court gave, in substance, a general intent instruction rather than a specific intent instruction. The
Now, fraudulent intent is necessary to sustain a charge of a scheme to defraud.
Now, in that regard, intent and motive should not be confused. Motive is what prompts a person to act while intent refers to the state of mind with which the act is done.
So, if you find beyond a reasonable doubt that the acts constituting the crime charged were committed by the defendant under consideration voluntarily, with a specific intent to do something the law forbids, then the element of “willfulness“, as defined in these instructions has been satisfied even though the defendant may have believed his conduct was either religiously, politically, morally or otherwise required, or that ultimate good would result from such conduct.
On the other hand, if you have a reasonable doubt as to whether the defendant acted in good faith, sincerely believing himself to be exempt by the law, then he did not intentionally violate a known legal duty; that is, he did not act “willfully,” and that essential part of the offense has not been established.
The court reiterated the specific intent requirement in other parts of the charge. See, e.g., these instructions: “What must be proved and proved beyond a reasonable doubt is that the defendant knowingly and willfully devised or intended to devise a scheme to defraud substantially the same one that is alleged in the indictment, and that the use of the United States mail was closely related to the scheme.” (R48-4252). “[T]he question is, did the defendant intend to deceive and defraud?” (R48-4252-53); “Now, the Government must prove beyond a reasonable doubt that these [Paradies] defendants aided, abetted, counseled, or caused mail fraud to be committed with the specific intent that each and every element of the crime of mail fraud be committed by some person.” (R48-4261). “Now, in this case good faith is a complete defense ... because good faith on the part of the defendants is inconsistent with the intent to defraud or willfulness, which is an
The government claims that the above-quoted portion of the jury instructions was requested by the defendants. Having asked for the charge, the government claims, they cannot now complain about it. See United States v. Chandler, 996 F.2d 1073, 1084 (11th Cir.1993) (appellant cannot complain of a jury instruction that he submitted), cert. denied, --- U.S. ----, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994); Leverett v. Spears, 877 F.2d 921, 924 (11th Cir.1989) (doctrine of invited error precludes appellate claim that jury instruction requested by the appellant was erroneous). The Paradies defendants claim that the charge was not accepted as they requested it verbatim, but that they strenuously objected to the amended version given by the district court.
Assuming that the defendants are not barred from complaining about the instructions, the court must look at “the charges as a whole” to determine whether the jury was “sufficiently instructed ... so that it understood the issues involved and were not misled.” See Hooshmand, 931 F.2d at 731. The portions of the instructions about which the defendants complain might potentially be deemed confusing.33 However, after reviewing the instructions are read in their entirety, we find that they were legally sufficient, particularly in light of the other instructions pointed out by the government. The court explained many times that the defendants must have acted with the specific “intent to defraud,” which
(2) Theory of Defense
The refusal to give an instruction is reviewed for an abuse of discretion. United States v. Turner, 871 F.2d 1574, 1578 (11th Cir.), cert. denied, 493 U.S. 997, 110 S.Ct. 552, 107 L.Ed.2d 548 (1989), and is reversible error if (1) the requested instruction was a correct statement of the law, (2) its subject matter was not substantially covered by other instructions, and (3) its subject matter dealt with an issue in the trial court that was so important that failure to give it seriously impaired the defendant‘s ability to defend himself. United States v. Sirang, 70 F.3d 588, 593 (11th Cir.1995).
Almost three months before trial, D. Paradies submitted a requested jury charge labeled “Theory of the Defense.” The submitted charge consisted only of two introductory paragraphs, and then explained in brackets that “the remainder of this proposed charge will be submitted to the Court after the defense rests.” At some point just before the court instructed the jury, D. Paradies submitted the remainder of the proposed charge, which basically summed up the his defense theory: that he had no duty to supervise the financial arrangements between his co-defendants; that he had
The district court disallowed the “revised” version of the proposed instruction because it was untimely and because “it wasn‘t any good anyhow.” D. Paradies argues that his proposed jury charge was, in fact, timely because he filed the first proposed charge long before trial, putting the court and the government on notice. While the timeliness of this proposed jury instruction is highly suspect because the substance of it was not submitted until just before the court delivered the charges, we will assume that the instruction was timely filed and is properly reviewable by this court.35
Paradies argues that a defendant is entitled to a theory of defense charge for which there is any evidentiary foundation, “even
D. Propriety of the Convictions Pursuant to § 666
D. Paradies and Jackson contest their convictions under
[C]orruptly giv[ing], offer[ing], or agree[ing] to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of a value of $5000 or more.
the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
(1) Does § 666 Require that the Corrupt Payment Be Directly Connected to the Administration of Federal Funds?
The defendants argue that they cannot be convicted pursuant to
First, in construing
[W]e find the relevant statutory language plain and unambiguous. By the terms of
§ 666 , when a local government agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct “in any transaction or matter or series of transactions or matters involving $5,000 or more concerning the affairs of” the local government agency.18 U.S.C. § 666(b) (Supp.1984) (emphasis added). Subsection (b) contains nothing to indicate that “any transaction involving $5,000” means “any federally funded transaction involving $5,000” or “any transaction involving $5,000 of federal funds,” and other subsections of the statute contain no inconsistent provisions that might suggest such a qualification.
Westmoreland, 841 F.2d at 576 (emphasis added).
Other circuits have followed this approach and have established that the government is not required under
(2) Does § 666 Require a Quid Pro Quo?
A quid pro quo is simply a specific official act in exchange for a specific corrupt payment. D. Paradies claims that this element is required in order to convict him under
The government claims that, because this is the appeal from the district court‘s failure to give a “quid pro quo” jury charge, and the defendant neither requested nor objected to the absence thereof, this court reviews this issue for plain error.
We have carefully reviewed the jury charges given in this case, and we are persuaded that the district court did not commit reversible error under the reasoning in Medley. The jury charges tracked the statutory requirements, and the evidence at trial was sufficient for a jury to find that Jackson accepted payments for his votes and his influence upon the City Council and the administration. Such a finding would satisfy any quid pro quo requirement under the statute. Therefore, the court‘s instructions were not plainly erroneous, and they would not serve as a basis for reversal under these circumstances.
E. Evidentiary Issues
The Paradies defendants also raise numerous evidentiary issues.37 Particularly, they claim that the district court abused its discretion in excluding certain testimony of their legal expert, in admitting a tape recording of a payoff to Echols, and in admitting evidence against D. Paradies under
(1) Limitation of Testimony of Legal Expert
The district court‘s exclusion of expert testimony is subject to an abuse of discretion standard, United States v. Lankford, 955 F.2d 1545, 1550 (11th Cir.1992), and constitutes reversible error if the defendant establishes that the error had a “substantial impact on the outcome.” United States v. Sellers, 906 F.2d 597, 601 (11th Cir.1990).
The Paradies defendants called Thomas O. Marshall, a former Chief Justice of the Georgia Supreme Court, to testify as a legal expert. He testified about the City‘s MBE program and the management and shareholder‘s agreements. The district court refused to allow Judge Marshall to testify about the enactment of
While Garber may be the law for tax cases, ignorance of the law is not a defense in this mail fraud case, as we have already discussed supra. See Hollis, 971 F.2d at 1451-52. If the district court had allowed testimony that ignorance of the law was a defense would have mislead and confused the jury. “The law would be in a curious state if jurors received their instructions on the law from an expert witness as well from the trial judge.” United States v. Brodie, 858 F.2d 492, 497 (9th Cir.1988) (rejecting proffer of an expert to testify on unsettled points of law). Additionally, as we have concluded,
(2) Admission of Tape Recorded Payoffs
After he began to cooperate with the government, Echols agreed to be videotaped and audiotaped at breakfast/bribery meetings held between Echols and two other councilmembers, Arrington and Fowlkes. The tapes show the councilmembers accepting bribes, and they also contain statements by Mr. Echols about Paradies’ decision not to testify before the grand jury. Govt. Exhibit 473T (“They wanted to talk to Paradies, and at that time Paradies’ attorney wouldn‘t let Paradies go down.“). Paradies filed a motion in limine to exclude the tapes because they constituted hearsay, and they were irrelevant and prejudicial. The district court disallowed the tapes in the governments case-in-chief because they were irrelevant and unduly prejudicial. He reserved final determination on the matter, however, because the only basis for admission of the tapes would have been to rehabilitate Echols’ credibility.
After Echols testified on direct at trial, the defense conducted an aggressive cross-examination of Echols. On redirect, to rehabilitate their witness, the government again sought to introduce the tapes. The district court found that the tapes were admissible under
The government correctly argues, however, that “[r]egardless of the ground for admission of evidence cited by the district court, this Court will uphold the admission even if the district court‘s reasons were erroneous if the admission was proper on other grounds.” United States v. Cardenas, 895 F.2d 1338, 1345 (11th Cir.1990). The government also correctly points out that the tapes were not hearsay, because they were not statements offered for the truth of the matter asserted. Rather, the breakfast conversations were innocuous, and they were offered merely to rehabilitate Echols’ testimony that the people involved had a familiar relationship and had regular breakfast meetings.40 See United States v. Price, 792 F.2d 994, 996-97 (11th Cir.1986) (statements admitted simply to put other statements into context are not hearsay). Also, there are no nonverbal hearsay concerns with the videotape of money being passed, because “[w]hen non-verbal conduct, like the transfer of money, is ambiguous, contemporaneous words which characterize the transactions are not hearsay.” United States v. Valentine, 644 F.Supp. 818, 821 (S.D.N.Y.1986). Therefore, because the video and audio tapes became relevant to rehabilitate Echols, and because the tapes did not constitute hearsay, the admission of the evidence was proper despite the court‘s erroneous ruling.
(3) Admission of Evidence Pursuant to 404(b)
“This court reviews the decision to admit extrinsic act evidence under
The district court admitted two days and seven witnesses regarding evidence that the Paradies defendants violated the Michigan Campaign Finance Act (“MCFA“) from 1990 through 1993 by illegally reimbursing employees for contributions to political candidates and concealing those reimbursements through phony travel vouchers. D. Paradies claims that the jury could not reasonably find that he was involved in the extrinsic acts. He takes issue with the illicit intent attached to the evidence, because he claims that there was no evidence that the actions of his companies violated any laws. He claims that there is no basis for
F. Jackson‘s Sentence Pursuant to the Sentencing Guidelines
Defendant Jackson raises several objections to the applications of the sentencing guidelines to his sentence. Review of the district court‘s determination that Jackson‘s sentence should have been enhanced under
Jackson first claims that the district court erroneously calculated the amount of loss under the all-too-familiar
Next, Jackson argues that the district court erred in enhancing his sentence under
The district court further found that Jackson used “sophisticated means” to impede discovery of the existence or extent of the tax offense. See
Finally, Jackson‘s offense level was increased under
III. CONCLUSION
In sum, we conclude that the district court did not commit reversible error in connection with any of the convictions or sentences of these defendants. We repeat the irony in this case that the thirty-five percent minority participation requirement imposed by Dobbs,42 which was designed to benefit minority-owned businesses, served as the underlying vehicle by which Jackson became involved with the Paradies defendants. In any event, these parties received a fair trial, and the jury returned a reasonable verdict. Accordingly, we hereby AFFIRM the district court in all respects.
Notes
Section 18-2008 of the Atlanta City Code, entitled “Investments in Conflict with Official Duties,” provides in part:[A]ny council member ... who has a private interest, direct or indirect, in any proposed legislation or any decision pending before such person or the body of which the person is a member or employee, shall not vote for or against, discuss, decide or in any way participate in considering the matter, but shall publicly disclose, on the official records of the body, the nature and extent of such interest, prior to any determination of the matter.
[No] ... council member ... shall invest, or hold any investment directly or indirectly, in any financial, business, commercial or other private transaction which creates a conflict with or adversely affects his official duties to the detriment of the city.
[A]ny person summoned for jury service may be (1) excused by the court ... upon a showing of undue hardship or extreme inconvenience, ... or (2) excluded by the court on the ground that such person may be unable to render impartial jury service or that his service as a juror would be likely to disrupt the proceedings, or (3) excluded upon peremptory challenge as provided by law, or (4) excluded pursuant to the procedure specified by law upon a challenge by any party for good cause shown, or (5) excluded upon determination by the court that his service as a juror would be likely to threaten the secrecy of the proceedings, or otherwise adversely affect the integrity of jury deliberations.
This amendment restores the mail fraud provision to where that provision was before the McNally decision....
The amendment adds a new section to 18 U.S.C. 63 that defines the term “scheme or artifice to defraud to include a scheme or artifice to defraud another of the intangible right of honest services.” Thus, it is no longer necessary to determine whether or not the scheme or artifice to defraud involved money or property. This amendment is intended merely to overturn the McNally decision.