UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DARRELL A. TOMBLIN, Defendant-Appellant.
No. 93-8679
UNITED STATES COURT OF APPEAL FIFTH CIRCUIT
(December 30, 1994)
Before REYNALDO G. GARZA, WIENER, and EMILIO M. GARZA, Circuit Judges.
Appeal from the United States District Court for the Western District of Texas
Darrell A. Tomblin was convicted of bribery (Count 22), conspiracy to commit bribery (Count 1), using interstate travel to facilitate bribery (Counts 2, 4, 6-8, 10-21), aiding and abetting bribery (Counts 5, 9), and extortion (Count 3). He appeals on various grounds. We affirm in part and reverse in part.
I
Tomblin was the coordinating force for a group attempting to develop business opportunities in Grenada and acquire controlling
Because Tomblin lacked the financial assets to forward these plans, he involved two Texas bankers, Leo Ladoucer and Danny Gonzalez, as potential financiers for the ventures. To secure their cooperation in his plans, Tomblin promised Ladoucer and Gonzalez that he would exercise his political influence with Senator Hecht‘s office to gain assistance in bypassing the regular channels involved in obtaining the approval of the Federal Home Loan Bank Board (“FHLBB“) for their takeover of Suburban Savings Association (“Suburban“).
Tomblin, Ladoucer, and Gonzalez attempted to accomplish their goals, however, by promising Glen Mauldin, Senator Hecht‘s administrative assistant and campaign treasurer, a $50,000 campaign contribution, paying Mauldin‘s expenses for a trip to Texas, and promising him a 10% stake in the Grenadan and S&L ventures. Unbeknownst to Tomblin, Ladoucer and Gonzalez served as government informants and made several recordings of conversations relating to these events.
The involvements of the parties began when Tomblin contacted Mauldin to determine what assistance the Senator‘s office could
Shortly thereafter, George Chall, who was acquainted with Tomblin, introduced Ladoucer to Tomblin. Ladoucer and Gonzalez were seeking investors to buy notes from Suburban in order to improve Suburban‘s liquidity. Tomblin did not buy any notes; instead, he suggested that Ladoucer and Gonzalez should obtain a waiver from the FHLBB so that they could make more loans.3 Tomblin offered to use his influence with Senator Hecht to facilitate a meeting between Ladoucer, Gonzalez, and Danny Wall, chairman of the FHLBB.4
Ladoucer and Gonzalez also desired access to Chairman Wall because of the manner in which they had acquired a substantial
Tomblin promised to help Ladoucer and Gonzalez get a meeting with Chairman Wall, subject to several conditions. First, Ladoucer and Gonzalez had either to pay Tomblin a $100,000 fee for his assistance or make him a $250,000 loan. Tomblin also told Ladoucer and Gonzales that they would have to pay Lachelli a $25,000 lobbying fee and contribute $50,000 to Hecht‘s campaign fund. Tomblin had Mauldin fly to San Antonio to discuss the planned meeting with Chairman Wall and the arrangements for the campaign contribution.
Ladoucer and Gonzalez complied with most of Tomblin‘s requests. They paid Mauldin‘s expenses of $725.15 for the trip, made the $250,000 loan to Tomblin through two Texas shell
At the meeting with Chairman Wall and his assistant, Ray Meyer, Gonzalez discussed the change of control and their hope that the FHLBB would grant forbearance to Suburban. Mauldin also attended the meeting; Meyer testified at trial that Mauldin‘s attendance was unusual and an indication of Hecht‘s interest.6
None of the planned ventures ever came to fruition. The FHLBB questioned the application for change of control, and Meyer‘s cooperation was at best lukewarm. Ladoucer also never made the $50,000 campaign contribution. Although the group continued to pursue the Grenadan venture, indictments against the conspirators short-circuited their plans.7
Tomblin was charged with twenty-two counts of conspiracy to commit bribery,8 bribery,9 using interstate facilities to commit
II
A
Tomblin argues that the district court should have suppressed certain recorded conversations because 1) the FBI investigators omitted material exculpatory information from the affidavit they submitted to obtain wiretap authorization, 2) the government failed to maintain proper custody of the tapes,13 and 3) the “consensual” recordings were involuntary.
1
Tomblin first asserts that, because the FBI omitted information, the affidavit submitted to obtain authorization to monitor certain phone conversation was deficient. We review the magistrate judge‘s decision for clear error. United States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985). Although we presume “validity with respect to the affidavit supporting the search warrant,” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978), “[d]eference to the magistrate, . . . is not boundless. . . . [T]he deference accorded to a magistrate‘s finding of probable cause does not preclude
[T]he challenger‘s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements or witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient.
Franks, 438 U.S. at 170, 98 S. Ct. at 2684. If the defendant successfully makes this showing, and if the defect in the affidavit is material, the evidence obtained pursuant to the faulty affidavit is inadmissible. Id. at 155-56, 98 S. Ct. at 2676; see also United States v. Stanert, 762 F.2d 775, 780 (9th Cir.) (discussing two Franks elements: 1) that intentional or reckless falsity existed, and 2) that absent invalid information, the remaining affidavit is insufficient for probable cause).
Tomblin contends that the investigators omitted information from their affidavits intentionally or with reckless disregard. Omissions or misrepresentations can constitute improper government behavior. Stanert, 762 F.2d at 781 (requiring “a substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit
Tomblin makes several assertions that the FBI agents omitted information from their affidavits, including: 1) that they did not reveal a deal for leniency that the agents made with Ladoucer; 2) that they did not reveal that Ladoucer was violating the law by meeting with Chairman Wall; 3) that they did not explain that some of the targets’ admissions were made when the targets were intoxicated; and 4) that they failed to reveal that the targets had refused to act unlawfully on several occasions.
The government contends that the evidence contradicts Tomblin‘s first two assertions. The record reflects that the government did reveal that Ladoucer was expecting a deal in return
Even if we infer recklessness from the omitted exculpatory information as asserted in Tomblin‘s remaining contentions, Martin, 615 F.2d at 329, we also determine whether that information is material, Colkley, 899 F.2d at 301; Williams, 737 F.2d at 604. The targets may, as Tomblin argues, have refused to break the law as alleged, and they may have been intoxicated as alleged. Neither supports a finding of deliberate falsehood or reckless disregard for truth because the balance of the information submitted in the affidavits is more than sufficient on its own to establish probable cause. Therefore, the absence of exculpatory circumstances for a few of the conversations does not make the remaining information misleading, and the district court‘s refusal to suppress the tapes does not constitute clear error.
2
Tomblin also asserts that the “consensual” tape recordings were not voluntarily made. “Voluntariness is a question to be determined from the totality of the circumstances, . . . and we will not disturb the trial court‘s determination on appeal unless it is clearly erroneous.” United States v. Smith, 649 F.2d 305, 209 (5th Cir. Unit B 1981) (citations omitted), cert. denied, 460 U.S. 1068, 103 S. Ct. 1521, 75 L. Ed. 2d 945 (1983). The
Tomblin argues that Ladoucer and Gonzalez agreed to the recordings only because they hoped for improved treatment in the prosecutions against them. A hope for leniency, however, does not vitiate consent. United States v. Jones, 839 F.2d 1041, 1050 (5th Cir.), cert. denied, 486 U.S. 1024, 108 S. Ct. 1999, 100 L. Ed. 2d 230 (1988); Kolodziej, 706 F.2d at 595; United States v. Llinas, 603 F.2d 506, 508 (5th Cir. 1979), cert. denied, 444 U.S. 1079, 100 S. Ct. 1030, 62 L. Ed. 2d 762 (1980); United States v. Juarez, 573 F.2d 267, 278 (5th Cir.), cert. denied, 439 U.S. 915, 99 S. Ct. 289, 58 L. Ed. 2d 262 (1978).14 Accordingly, Tomblin‘s challenge fails.
B
Next, Tomblin raises several challenges to his convictions for bribery. He contends that the district court erred in refusing to give his requested jury instruction regarding intent. He also
1
Tomblin challenges the district court‘s refusal to grant his requested jury instruction regarding his intent to bribe Mauldin.15 Specifically, he argues that the jury instruction actually given did not require the jury to find an explicit quid pro quo, which is a predicate to the specific intent required. We review jury instructions for abuse of discretion. United States v. Pennington, 20 F.3d 593, 600 (5th Cir. 1994). “The refusal to give a jury instruction constitutes error only if the instruction (1) was
Under the bribery statutes, the government must prove a quid pro quo, that is, that the official took money in return for an exercise of his official power. McCormick v. United States, 500 U.S. 257, 111 S. Ct. 1807, 1815-16, 114 L. Ed. 2d 307 (1991). In order to convict a briber, the government must prove that the accused intended to bribe the official. Intending to make a campaign contribution does not constitute bribery, even though many contributors hope that the official will act favorably because of their contributions. See United States v. Allen, 10 F.3d 405, 411 (7th Cir. 1993) (“[A]ccepting a campaign contribution does not equal taking a bribe unless the payment is made in exchange for an explicit promise to perform or not perform an official act. Vague expectations of some future benefit should not be sufficient to make a payment a bribe.“); United States v. Biaggi, 909 F.2d 662, 695 (2d Cir. 1990) (“There is a line between money contributed lawfully because of a candidate‘s positions on issues and money contributed unlawfully as part of an arrangement to secure or reward official action, though its location is not always clear.“), cert. denied, 499 U.S. 904, 111 S. Ct. 1102, 113 L. Ed. 2d 213 (1991).
The district court instructed the jury on the issue of an intent to bribe by using Fifth Circuit Pattern Jury Instruction16
2
Assuming the instruction was proper, Tomblin also argues that the evidence was insufficient for the jury to convict him of bribery. See Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979) (“[T]he critical inquiry on review of sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.“). To determine sufficiency in a criminal case:
The evidence is reviewed in the light most favorable to the government, drawing all reasonable inferences in support of the verdict. But if the evidence viewed in
United States v. Pennington, 20 F.3d 593, 597 (5th Cir. 1994) (citations omitted); see also United States v. Stephens, 964 F.2d 424, 427 (5th Cir. 1992); United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.), cert. denied, 113 S. Ct. 320, 121 L. Ed. 2d 248 (1992). The government need not prove the occurrence of the quid pro quo; proof of the agreement will suffice. Evans v. United States, 504 U.S. 255, 112 S. Ct. 1881, 1889, 119 L. Ed. 2d 57 (1992) (“[T]he Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.“).19 Thus, we “consider both direct and circumstantial evidence, including the context in which a conversation took place, to determine if there was a meeting of the minds on a quid pro quo.” Carpenter, 961 F.2d at 827.
Tomblin argues that, at most, he had only a general
C
Tomblin also challenges his extortion conviction on several grounds. He argues first that the evidence was insufficient to support the jury‘s finding that the alleged extortion affected interstate commerce. He also argues that, because he was not a public official, he could not be convicted of extorting money under color of official right. Next, Tomblin contends that the district court improperly refused to give his requested instruction regarding fear of economic harm. He further asserts that the evidence was insufficient to convict him of extorting money through fear of economic harm. Lastly, he argues that, even if the evidence was sufficient on the fear of economic harm theory, the insufficiency on the under color of official right theory requires reversal because the instructions asked only for a general verdict on the extortion count.23
1
Tomblin argues that the government failed to establish that the alleged extortion affected interstate commerce. An effect on
2
Tomblin next contends that, because he was a private citizen, he cannot be convicted of extortion under color of official right. Usually, only public officials are charged with extorting property under color of official right. See United States v. Snyder, 930 F.2d 1090, 1093 (5th Cir.) (discussing trial court‘s definition
In contrast, the extortion for which Tomblin was convicted))coercing the $250,000 loan from Ladoucer and Gonzalez))did not result in the receipt of money by any public official. Tomblin was not a public official, nor was he in the process of becoming one. Moreover, although he may have “cloaked” himself in the Senator‘s authority, as the government argues, no one believed that he was a public official, especially not his purported victims, Ladoucer and Gonzales. He was convicted of threatening to use his political influence against Ladoucer and Gonzales, but this power was not official power; it was unofficial power over an official.
Determining whether Tomblin‘s actions can constitute acting under color of official right requires us to interpret the statutory language of the Hobbs Act. The plain meaning of the statute does not clearly indicate who can act under color of official right, Freeman, 6 F.3d at 592 (“The Hobbs Act does not define `under color of official right.‘“), although the very use of the word “official” suggests that an official must be involved in some manner for an offense to occur. Consequently, we look to the legislative history for further guidance. Although the legislative
In passing the Hobbs Act, Congress intended to make a distinction between the “fear of harm” ground and the “under color of official right” ground. United States v. McClain, 934 F.2d 822, 830 (7th Cir. 1991). This is understandable because the official‘s position provides the coercive element that the threats and fear of the other ground supply. Id. Accordingly, we agree with the Seventh Circuit that in circumstances such as those in this case, a private person cannot be convicted of extortion under color of official right. See McClain, 934 F.2d at 831 (“[A]s a general matter and with caveats as suggested here, proceeding against
3
Tomblin also challenges the district court‘s refusal to grant his requested jury instruction regarding fear of economic harm.31 Specifically, he argues that the jury instruction actually given did not require the jury to find a fear of actual harm.32 Extortion
As with the bribery counts, the trial court instructed on extortion in accordance with the Fifth Circuit Pattern Jury Instructions 2.68 and 2.69.35 Tomblin argues that the instruction given does not adequately distinguish between fear of an actual loss and fear of deprivation of a future benefit. The instruction as given fully allowed Tomblin to argue that Ladoucer and Gonzales only feared that they would not receive the benefit of a meeting with Chairman Wall, and that consequently, their fear was not of an
4
Assuming that the instruction was proper, Tomblin further argues that the evidence was insufficient for the jury to convict him of extortion by wrongful use of fear of economic harm.37 Tomblin argues that Ladoucer and Gonzalez only feared that they would not receive a meeting with Chairman Wall, and that this fear was insufficient to support an extortion conviction. See Garcia, 907 F.2d at 383 (reversing conviction where victim merely hoped for improved chances on future contracts, because paying for beneficial activity “is not the mindset of a victim of economic extortion“); Capo, 817 F.2d at 954 (reversing conviction where victims desired better probability that they would secure employment). We distinguish these cases, however, because although Ladoucer and Gonzalez did fear they would not get their meeting, they primarily
5
Even though the evidence was sufficient to convict Tomblin of extortion by wrongful use of fear of economic harm, he contends that the insufficiency of the “under color of official right” prong requires a reversal because both theories were submitted to the jury on a single count. When only one of multiple theories submitted to a jury is sufficient, whether this requires reversal depends on the nature of the insufficiency.
[W]hen disjunctive theories are submitted to the jury and the jury renders a general verdict of guilty, appeals based on evidentiary deficiencies must be treated differently than those based on legal deficiencies. If the challenge is evidentiary, as long as there was sufficient evidence to support one of the theories
presented, then the verdict should be affirmed. However, if the challenge is legal and any of the theories was legally insufficient, then the verdict must be reversed.
United States v. Garcia, 992 F.2d 409, 416 (2d Cir. 1993). The reason for the varying treatment is that jurors can, from their own experience, weed out evidentiary deficiencies,40 but not legal insufficiencies.41
Legal insufficiency occurs when, even if the government proved everything it possibly could prove, the defendant‘s conduct would not constitute the crime charged. Self, 2 F.3d at 1093 (reversing conviction where, for one theory, “both the government and the district court were mistaken about the law . . . and, therefore, Defendant‘s actions were not within the statutory definition of the crime“). Because Tomblin was not a public official, conviction for extortion could have been based on a legally insufficient ground. Therefore, even if the evidence and instructions properly allowed the jury to convict on a theory of fear of economic harm, we cannot presume that the jury based its verdict on the legally sufficient ground, and we must reverse Tomblin‘s extortion conviction.
D
Because Tomblin did not preserve error by objecting to these instances of alleged prosecutorial misconduct at trial, we review these claims only for plain error. See
1
Tomblin first argues that the prosecutor‘s cross-examination of George Chall, Tomblin‘s witness, about Tomblin‘s connection to bankrupt restaurants exceeded the scope of direct examination.
Tomblin contends that his direct examination of Chall focused on Chall‘s introduction of Ladoucer to Tomblin and Ladoucer and Tomblin‘s subsequent business dealings. On direct examination,
Tomblin also argues that, because Chall did not testify about Tomblin‘s character, the prosecutor‘s questions to Chall about Tomblin‘s character on cross-examination were outside the scope of direct examination.43 If so, then Chall‘s testimony about Tomblin‘s
A review of the record reveals nothing in Tomblin‘s direct examination of Chall that provided grounds for the prosecutor to
2
Tomblin also argues that, because the prosecutor did not provide advance notice, the introduction of evidence of other bad acts when cross-examining Tomblin violated
A defendant makes his character an issue when he testifies. Waldrip, 981 F.2d at 803; United States v. Blake, 941 F.2d 334, 340 (5th Cir. 1991), cert. denied, ___ U.S. ___, 113 S. Ct. 596, 121 L. Ed. 2d 533 (1992). The government is entitled to cross-examine properly and effectively a witness in an effort to elicit the truth. United States v. Havens, 446 U.S. 620, 626-27, 100 S. Ct. 1912, 1916, 64 L. Ed. 2d 559 (1980). However, “a prosecutor may not use impeachment as a guise for submitting to the jury substantive evidence that is otherwise unavailable.” United States v. Silverstein, 737 F.2d 864, 868 (10th Cir. 1984). Rather, ”
When Tomblin testified, the prosecutor questioned him on cross-examination about alleged acts of misconduct. Tomblin complains of the prosecutor‘s cross-examination questions about an alleged F.E.C. investigation of Tomblin‘s involvement in a political candidate‘s campaign, Tomblin‘s alleged hiring of a lawyer to pay-off foreign officials, and an investigation of Tomblin by the F.B.I. for alleged bankruptcy fraud. Tomblin also complains of the prosecutor‘s cross-examination about whether Tomblin had skimmed $110,000 from his bankrupt restaurant in Austin, Texas, put the money in a shoe box, and fled from Texas to Florida. The prosecutor‘s cross-examination questions were directed at Tomblin‘s alleged acts of fraud, bribery, and embezzlement.52 As such, the prosecutor‘s questions were probative of Tomblin‘s character for truthfulness and were permissible under
3
Tomblin first contends that the prosecutor‘s comments on Tomblin‘s cross-examination testimony were improper because the prosecutor did not “force” Tomblin to respond to the questions and
Tomblin also contends that the prosecutor implied that Tomblin‘s own attorney believed he was guilty of the crimes charged. Statements in closing argument that presuppose a defendant‘s guilt can be the sort of “foul blows” long held improper. United States v. Goff, 847 F.2d 149, 164 (5th Cir.), cert. denied, 488 U.S. 932, 109 S. Ct. 324, 102 L. Ed. 2d 341 (1988). In the prosecutor‘s rebuttal closing argument, he stated
Tomblin lastly contends that the prosecutor bolstered his case and the testimony of his witnesses by investing them with the integrity of the state.57 The possible prejudice of a prosecutor‘s “reverse conspiracy” argument is that the jury could reasonably infer that it must “abandon confidence in the integrity of the government” before it could acquit the defendant. Goff, 847 F.2d at 164. Additionally, such argument could bolster its witnesses in the eyes of the jury by stamping them with the integrity of the sovereign. United States v. Dorr, 636 F.2d 117, 119-20 (5th Cir. Unit A 1981). The prosecutor‘s remark in this case is similar to the one condemned as prejudicial in Goff. Consequently, we examine the effect of any cautionary instructions given by the trial judge and the strength of the evidence suggesting guilt to see if they attenuate the prejudice of the prosecutor‘s statement. Simpson, 853 F.2d at 1227; see also Goff, 847 F.2d at 165 (evaluating “whether the jury would have found appellants guilty had it not been for the prosecutor‘s improper argument,” and considering the degree of prejudice, the effectiveness of curative instructions, and the weight of the evidence supporting guilt).
The trial court instructed the jury prior to opening statements that the opening and closing arguments of both the prosecutor and the defendant did not constitute either evidence or instructions on the law. We presume that the jury follows the instructions of the trial court unless there is an “overwhelming probability that the jury will be unable to follow the instruction and there is a strong probability that the effect is devastating.” United States v. Barksdale-Contreras, 972 F.2d 111, 116 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1060, 122 L. Ed. 2d 366 (1993). Tomblin presents no convincing argument that the jury did not follow the instruction given by the trial court. Also, there was substantial evidence of Tomblin‘s guilt, including witness testimony and the taped conversations. Therefore we conclude that the trial court‘s instructions and the weight of the evidence against Tomblin dissipated the potential prejudice of the
E
Tomblin lastly argues that the district court erred when it found that Mauldin occupied a sensitive government position and, as a consequence, applied an eight-level upward departure. “In the appellate review of sentences, we examine factual findings subject to the `clearly erroneous’ standard . . . , and we afford great deference to the trial judge‘s application of the sentencing guidelines.” United States v. Humphrey, 7 F.3d 1186, 1189 (5th Cir. 1993).
Under the Sentencing Guidelines, “[i]f the offense involved a payment for the purpose of influencing . . . any official holding a high-level decision-making or sensitive position, [the base offense level] increase[s] by 8 levels.”
Tomblin contends that, as a mere aide, Mauldin did not possess the level of discretion or responsibility necessary to warrant the application of the upward departure. We disagree. A senator‘s top administrative aide holds a position of substantial influence, because he often serves as the senator‘s functional equivalent. See Gravel v. United States, 408 U.S. 606, 616-17, 92 S. Ct. 2614, 2623, 33 L. Ed. 2d 583 (1972) (“[I]t is literally impossible . . . for Members of Congress to perform their legislative tasks without the help of aides and assistants; . . . the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter‘s alter egos . . . .“). Moreover, Meyer testified that Mauldin‘s presence at a meeting signified Hecht‘s direct interest in the outcome. Consequently, the district court did not err in granting an eight-level upward departure in sentencing Tomblin.
III
Notes
(b) (1) directly or indirectly, corruptly give[], offer[] or promise[] anything of value to any public official or person who has been selected to be a public official, or offer[] or promise[] any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent))
(A) to influence any official act; or
(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person, or
(2) . . . [if a public official or a person selected to be a public official,] directly or indirectly, corruptly ask[], demand[], exact[], solicit[], seek[], accept[], receive[], or agree[] to receive anything of value for himself or for any other person or entity, in return for:
(A) being influenced in his performance of any official act; or
(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of the official duty of such official or person.
(c)(1) otherwise than as provided by law for the proper discharge of official duty))
(A) directly or indirectly give[], offer[], or promise[] anything of value to a public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official; or
(B) being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demand[], seek[], receive[], accept[], or agree[] to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person.
(a) travel[] in interstate or foreign commerce or use[] the mail or any facility in interstate or foreign commerce, with intent to))
. . .
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter perform[] or attempt to perform[] any of the acts specified in subparagraph . . . (3).
(a) . . . in any way or degree obstruct[], delay[], or affect[] commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempt[] or conspire[] so to do, or commit[] or threaten[] physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section.
(b) As used in this section))
(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
. . .
The solicitation and offer of campaign contributions and the payment of expenses related to campaigns are necessary and permissible forms of political activity and expression. Such conduct is not only well within the law, but unavoidable so long as election campaigns are financed by private contributions and expenditures. Thus, the payment of a campaign contribution, the promise of one, or the reimbursement of travel costs related to a campaign do not, in and of themselves, constitute bribery.
In order for such to constitute bribery, you must find beyond a reasonable doubt that Defendant TOMBLIN offered or solicited the payment of the $725.00 to GLEN MAULDIN and the $50,000 to the Hecht Re-Election Committee intentionally for an unlawful purpose intending that its acceptance be conditioned upon GLEN MAULDIN performing or not performing a defined, explicit official act.
This requires more than some generalized hope or expectation of ultimate benefit. the money must have been offered and paid with the intent and design to influence official action in exchange for the donation))the payment serving as a condition for a specified and bargained for action . . . .
Similarly, TOMBLIN contends that any offer or intent to offer a percentage interest in business ventures was made out of loyalty, friendship and the qualifications of MAULDIN and HECHT and not with the intent to influence an official act as alleged . . . . The offer, when coupled with such intent, if you find that he had such intent or if you have a reasonable doubt that he so intended, is not made corruptly and does not constitute bribery.
It must be remembered that TOMBLIN is not required to prove his innocent motivation. Rather, the prosecution must prove beyond a reasonable doubt that TOMBLIN did not act innocently . . . .
Title 18, United States Code, Section 201(b)(1) , makes it a crime for anyone to bribe a public official. In this case, the Defendant is charged with committing bribery in two different ways.In counts five and nine, the Defendant is charged with aiding and abetting Glen Mauldin in corruptly demanding, seeking, and receiving something of value in order to be influenced in the performance of official acts.
For you to find the Defendant guilty of bribery in counts five and nine, you must be convinced beyond a reasonable doubt:
First: That Glen Mauldin demanded, sought, or received something of value as described in the indictment.
Second: That Glen Mauldin was, at that time, a public official of the United States or was acting on behalf of the United States.
Third: That Glen Mauldin demanded, sought or received the item of value corruptly in return for being influenced in the performance of an official act; and
Fourth: That the Defendant aided and abetted Glen Mauldin in doing so.
. . .
In count twenty-two the Defendant is charged with bribing Glen Mauldin and with aiding and abetting the bribery. For you to find the Defendant guilty of bribery in count twenty-two, you must be convinced that the Government has proved each of the following beyond a reasonable doubt:
First: That the Defendant directly or indirectly gave, offered, or promised something of value to Glen Mauldin; and
Second: That the Defendant did so corruptly with intent to influence an official act by Glen Mauldin.
. . .
An act is “corruptly” done if it is done intentionally with an unlawful purpose. Therefore, in evaluating whether the Government has proved beyond a reasonable doubt that the Defendant bribed or intended to bribe a public official, you must focus specifically on the Defendant‘s mental state, regardless of the mental state of the public official. Merely because the public official accepts a thing of value with corrupt intent does not mean that the Defendant made the offer with corrupt intent. Indeed, the public official may accept an offer as a bribe, while the Defendant may not possess the same corrupt intent in offering something of value. Again, your focus must be on the Defendant‘s state of mind.
Before TOMBLIN can be convicted of extortion, the government must also prove that he obtained the property from Suburban Savings and Loan Association by the wrongful use of fear of economic loss or harm. The fear must be the loss of something to which Suburban was legally entitled. If the loan was made because Suburban felt that it stood to gain by making the loan, and not out of fear of economic loss, that is not extortion. In other words, if Suburban had no reason to fear an economic loss upon not making the loan, but instead, stood only to improve its economic condition by making the loan, TOMBLIN is not guilty of extortion.
Further, before you may convict TOMBLIN of extortion as alleged in Count 3 of the Indictment, you must find beyond a reasonable doubt that TOMBLIN knew the loan was being made because Suburban Savings and Loan feared an economic loss. TOMBLIN claims that he believed Suburban was making the loan because it was sufficiently collateralized; because he believed he was financially capable of obtaining the loan and that Suburban held a similar belief; and that the loan was of mutual benefit for each party and, therefore, properly negotiated . . . .
Before TOMBLIN can be found guilty of extortion as alleged in count three of the indictment, you must find beyond a reasonable doubt that he received the loan from Suburban Saving and Loan Association knowing that he was not legally entitled to receive it and further knowing that the loan was being made because Suburban feared an economic loss.
TOMBLIN asserts that he believed the loan was sufficiently collateralized, that it was made for value, i.e. a negotiated interest rate, and that it was made for a proper business purposes))the completion of his restaurant. Under such terms, TOMBLIN claims he believed he was obtaining the loan properly. If you find that TOMBLIN so believed, or you have a reasonable doubt as to whether or not he so believed, you must acquit TOMBLIN . . . .
Count three of the indictment charges the Defendant with extortion.
For you to find the Defendant guilty of this crime, you must be convinced that the Government has proved each of the following beyond a reasonable doubt:
First: That the Defendant obtained property from another with that person‘s consent;
Second: That the Defendant did so by wrongful use of actual or threatened fear of economic harm or under color of official right; and
Third: That the Defendant‘s conduct interfered with and affected interstate commerce.
. . .
The term “fear” includes fear of economic loss or damage. It is not necessary that the Government prove that the fear was a consequence of a direct threat; it is sufficient for the Government to show that the victim‘s fear was reasonable under the circumstances.
The use of actual or threatened fear is “wrongful” if its purpose is to cause the victim to give property to someone who has no legitimate claim to the property.
Q: There was a restaurant in Las Vegas that went bankrupt, and a restaurant in Austin that went bankrupt, correct?
A: Yes.
Q: Darrell Tomblin ever brag to you about how much money he made on those ventures?
A: No, sir.
Q: Did he ever tell you about how much money he made in bankruptcies on those?
A: No, sir.
Because the prosecutor‘s questions insinuated that Tomblin was guilty of some wrong, misconduct, or crime in relation to the restaurant bankruptcies, the questions also commented on Tomblin‘s character. See United States v. Park, 525 F.2d 1279, 1284-85 (5th Cir. 1976) (criticizing insinuating questions that imply wrongdoing).Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
[I]t was quite clear [defense counsel] and Mr. Tomblin did not want to try the case. They did not want to appear before you. . . . This is a case that is truly overwhelming in the strength of its evidence. Knowing what all the evidence would be, I don‘t blame them for not wanting the try the case. Instead, they tried to shift who was on trial here. . . . They tried to try a different case. He strove mightily to try someone else. He wanted to put Glen Mauldin on trial; he wanted to put Leo Ladoucer on trial; he wanted to put Vince Lachelli on trial; Glen Mauldin))everyone, everyone was to be on trial except him.