Petition — L'Hoste v. United States
Supreme Court brief1980
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IN THE
Supreme Court of the United States
OCTOBER, 1979
No. 79-1898
ROBERT J. L’HOSTE, ET AL,
Petitioners,
versus
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
JULIAN R. MURRAY, JR.
MURRAY, MURRAY, ELLIS, BRADEN & LANDRY
Attorney for Petitioners
612 Gravier Street
New Orleans, Louisiana 70130
[504]581-3141
si)
INDEX
Table of Authorities
Opinions Below
Jurisdiction
Questions Presented
Constitutional and Statutory Provisions Involved
Statement of the Case
Statement of Facts
Reasons for Granting Writ
Argument I
Argument II
Artument III
Conclusion
Certificate
APPENDIX
United States v. L’Hoste, 609 F.2d 796
(Sth Cir., 1980)
United States v. L’Hoste, Slip Opinion
Comments of Judge Gordon on Granting a New Trial
Indictment
oN ANA AR BReUmDNRllCUDNOCOWN
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TABLE OF AUTHORITIES
Cases Page
Hamling v. United States, 418 U.S. 87 (1974) 9,10
Howard v. Federal Crop Ins. Co., 540 F.2d 695
(4th Cir., 1971 17
Russell v. United States, 369 U.S. 749 )1962) 9,10
United States v. Arthur, 544 F.2d 730,
(4th Cir., 1976) 2, 8, 12, 13
United States v. Beacon Piece Dying & Finishing Co.,
455 F.2d 216 (2nd Cir., 1972) 17
United States v. Diecidue, 603 F.2d 535,
(Sth Cir., 1979) 9
United States v. Huber, 603 F.2d 387 (2nd Cir., 1979) 3, 8, 14, 16
United States v. James, 576 F.2d 1131
(Sth Cir., 1978) 5
United States v. L’Hoste, 609 F.2d 796
(Sth Cir., 1980) 1,9, 10, 12, 16
United States v. Liss, 137 F.2d 995 (2nd Cir., 1943) 11
United States v. Mandel, 591 F.2d 1347 (4th Cir., 1979) 2,8, 12
Statutes Page
18 U.S.C. §371 5
18 U.S.C. §656 13
18 U.S.C. §1341 11
18 U.S.C. §1952 11
18 U.S.C. §1961 11
18 U.S.C. §1962 5,11, 14
itt
Table of Authorities [Continued
Statutes Page
18 U.S.C. §1963 3,6,7, 14
18 U.S.C. §3563 15
18 U.S.C. §3651-3656 16
28 U.S.C. §1254(1) ty 2
Federal Rules of Criminal Procedure 7(c)(1) 2, 3,5,7. 8.9.10, 11
La.R.S. 14:118 11
United States Constitution Amendment V 3
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
No.
ROBERT J. L’HOSTE, R. J. L HOSTE AND COMPANY, INC.,
CLARENCE EUGENE ROGERS AND MARVIN COCHRAN
Petitioners,
versus
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
The petitioners, Robert J. L’Hoste, R. J. L’Hoste and
Company, Inc., Clarence Eugene Rogers and Marvin Cochran,
pray that a Writ of Certiorari issue to review the opinion and
judgment of the United States court of Appeals for the Fifth
Circuit rendered in these proceedings on January 10th, 1980,
rehearing denied April 14, 1980.
2
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Fifth Circuit is reported as United States v. L'Hoste, et al, 609
F.2d 796 (5th Cir. 1980). That opinion appears at Appendix A,
infra. The denial of the petition for rehearing and rehearing en
banc was denied on April 14, 1980, and has not yet been
officially reported, but the slip opinion appears at Appendix B,
infra.
JURISDICTION
The judgment of the United States Court of Appeals for the
Fifth Circuit was entered on January 10, 1980. The judgment of
denial of the petition for’ rehearing and rehearing en banc was
entered on April 14, 1980.
The jurisdiction of this Court is invoked under 28 U.S.C.,
§1254(1).
QUESTIONS PRESENTED
1. Does Rule 7(c)(1) of the Federal Rules of Criminal Pro-
cedure requiring that an indictment be a ‘‘plain, concise and
definite written statement’ of the essential facts constituting the
alleged offense add requirements to an indictment more restric-
tive than the minimal Constitutional requirements as set forth by
this Court; and if so, did the indictment in the present case vio-
late the provisions of Rule 7(c)(1)?
2. Was the Court’s ruling in the present case to the effect that
the defendants were not entitled to a jury instruction distinguish-
ing between unlawful bribery and ‘‘goodwill expenditures’’ in
conflict with the Fourth Circuit cases of United States v. Arthur,
544 F.2d 730 (4th Cir. 1976) and United States v. Mandel,591
F.2d 1347 (4th Cir. 1979)?
3
3. Was the Fifth Circuit’s ruling in this case to the effect that
the forfeiture provisions of 18 USC §1963(a) are mandatory
rather than discretionary, in concert with the Second Circuit case
United States v. Huber, 603 F.2d 387 (2nd Cir. 1979).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. The indictment or the information shall be a plain, concise
and definite written statement of the essential facts constituting
the offense charged. It shall be signed by the attorney for the
Government. It need not contain a formal commencement, a
formal conclusion or any other matter not necessary to such state-
ment. Allegations made in one count may be incorporated by
reference in another count. It may be alleged in a single count
that the means by which the defendant committed the offense
are unknown or that he committed it by one or more specified
means. The indictment or information shall state for each count
the official or customary violation of the statute, rule, regulation,
or other provision of law which the defendant as alleged therein
to have vieclated. Federal Rules of Criminal Procedure, Rule
7(c)(1).
2. No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
grand Jury, except in cases arising in the land or naval forces, or
in the militia, when actual service in time of war or public
danger; nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; shall be compelled in any
criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensa-
tion. United States Constitution, Amendment 5.
3. § 1963. Criminal penalties
(a) Whoever violates any provision of section 1962 of this
4
chapter shall be fined not more than $25,000 or imprisoned not
more than twenty years, or both, and shall forfeit to the United
States (1) any interest he has acquired or maintained in violation
of section 1962, and (2) any interest in, security of, claim against,
or property or contractual right of any kind affording a source of
influence over, any enterprise which he has established, operat-
ed, controlled, conducted, or participated in the conduct of, in
violation of section 1962.
(b) In any action brought by the United States under this
section, the district courts of the United States shall have juris-
diction to enter such restraining orders or prohibitions, or to take
such other actions, including, but not limited to, the acceptance
of satisfactory performance bonds, in connection with any
property or other interest subject to forfeiture under this section,
as it shall deem proper.
(c) Upon conviction of a person ‘nder this section, the court
shall authorize the Attorney General to seize all property or other
interest declared forfeited under this section upon such terms
and conditions as the court shall deem proper. If a property right
or other interest is not exercisable or transferable for value by the
United States, it shall expire, and shall not revert to the convicted
person. All provisions of law relating to the disposition of prop-
erty, or the proceeds from the sale thereof, or the remission or
mitigation of forfeitures for violation of the customs laws, and
the compromise of claims and the award of compensation to
informers in respect of such forfeitures shall apply to forfeitures
incurred, or alleged to have been incurred, under the provisions
of this section, insofar as applicable and not inconsistent with the
provisions hereof. Such duties as are imposed upon the collector
of customs or any other person with respect to the disposition of
property tinder the customs laws vhall be performed under this
chapter by the Attorney General. The United States shall dispose
of all such property as soon as commercially feasible, making due
provision for the rights of innocent persons.
5
STATEMENT OF THE CASE
On December 1, 1977, defendants were charged in a forty
page indictment with conspiracy to violate various Federal and
State laws in violation of Title 18 USC 371 and « substantive
violation of the Rico Statute, Title 18 USC §1962. Various
pre-trial motions were filed, including a motion to dismiss the
indictment, based on over-breadth and vagueness, in violation of
Rule 7(c)(1) of the Federal Rules of Criminal Procedure. Prior to
the hearing of this motion, however, the Government filed a
superseding indictment charging the same violations of federal
law. Defendants renewed their motion to dismiss the new indict-
ment, which motion was denied, and the case went to trial on
March 13, 1978. Defendants were subsequently convicted on
both counts of the indictment. However, this conviction was
overturned by the trial court stating inter a/ia, that the indict-
‘ment was too broad, complex and impossible to defend against.
See Appendix C.
On June 6, 1978, the Government filed a second superseding
indictment with even broader allegations and language than the
previous one which was allotted to a different judge. See
Appendix D. Defendants again moved to dismiss the indict-
ment on the grounds that it violated the mandate of Rule
7(c)(1) that an indictment be a ‘‘plain, concise and definite’’
statement. This motion was subsequently denied. Defendants
sought relief by filing a petition for writ of mandamus with the
Fifth Circuit Court of Appeals, which was denied on July 17,
1978. A second trial was commenced on July 24, 1978. How-
ever, during the course of this trial, both counsel and the court
became aware of the decision of the Fifth Circuit Court of
Appeals in United States v. James, 576f.2d 1131 (Sth Cir.
i978), which lead to a mistrial on July 28, 1978. A new trial
began three days later which resulted in a guilty verdict on both
counts as to all defendants.
6
Defendants subsequently filed an appeal with the Fifth Cir-
cuit Court of Appeals (No. 78-5593) seeking to have their con-
victions overturned on various grounds including the over-
breadth of the indictment. The Government filed writs regard-
ing the refusal of the tiral court to invoke the forfeiture pro-
visions of 18 USC §1963 and the two matters were consolidated.
Subsequently, on January 10, 1980, a three judge panel consist-
ing of Judges Tjoflat, Vance and Allgood rendered a decision
affirming defendants convictions and granting the Govern-
ment’s request for a Writ of Mandamus to require the trial
judge to invoke the forfeiture provisions.
Defendants then applied for a rehearing and a rehearing en
banc, which was denied on April 8, 1980, with four judges dis-
senting from the denial of the rehearing en banc.
STATEMENT OF FACTS
The gist of the charges against the defendants, is that they
participated in a scheme whereby their company (R. J. L’Hoste
and Company, Inc.) would receive emergency sewer repair jobs
in exchange for ‘‘kickbacks’’ paid to certain local government
officials. These alleged kickbacks took the form of vacations,
free lunches, campaign contributions, and equipment rentals.
The time frame of the alleged scheme spans an eight year period
beginning on or about April 23, 1970, through December 1,
1977. (Appendix D.)
During the course of the trial, the defense admitted provid-
ing some local officials with free lunches, vacation trips, etc.
The only thing at issue therefore was the equipment rental
scheme. In order to prove this alleged conspiracy, the Govern-
ment relied solely on the testimony of two witnesses, Fred Hoth
and Carl Calamia. Each of these witnesses were given immunity
in exchange for their testimony.
>
Petitioners maintained throughout the trial and throughout
the post trial proceedings, and continued to maintain, that the
testimony of each of these two witnesses was filled with lies and
contradictions and was completely discredited. Therefore, the
evidence relating to the lunches, trips, etc. was critical during
the trial. The Government contended throughout the trial that
the giving of these favors constituted bribery. Petitioners, on
the other hand, maintained that they were merely legitimate
business expenditures designed to create goodwill with their
customers. A complete understanding of the difference
between bribery and goodwill expenditures was, therefore,
crucial to the jury. The trial court, however, did not instruct the
jury in this regard.
During the sentencing phase of the proceedings, the trial
court indicated that it believed the forfeiture provisions of the
RICO Statute (18 U.S.C. §1963) were discretionary, rather than
mandatory. He, therefore, refused to invoke the provisions
against petitioners. The Government then sought supervisory
writs from the Fifth Circuit Court of Appeals on the grounds
that the provisions of §1963 were mandatory and that the trial
judge had no discretion in the matter. Subsequently, the Fifth
Circuit agreed with the Government and ordered the trial court
to invoke the forfeiture provisions.
REASONS FOR GRANTING THE WRIT
1. The language of Rule 7(c)(1) of the Federal Rules of
Criminal Procedure requiring that an indictment be a ‘‘plain,
concise, and definite written statement of the essential facts
constituting the offense charged’’ has never been interpreted by
this or any other appellate court. Although often cited, the
legal requirements of the terms ‘‘plain, concise, and definite’
have never been enunciated. It is, therefore, imperative for a
defendant to know whether this rule actually means what it says
or is just a superfluous repetition of the minimal constitutional
standards.
2. The decision of the Fifth Circuit in this case, is in direct
conflict with the decision of the Fourth Circuit in the cases of
United States v. Arthur, 544 F.2d 730 (4th Cir., 1976) and
United States v. Mande/,591 F.2d 1347 (4th Cir., 1979).
3. The Fifth Circuit ruled in this case that the forfeiture pro-
visions of 18 U.S.C. §1963(a) were mandatory and that the trial
judge had no discretion as to whether they should be applied to
any given defendant. Petitioners maintain that, with the
increasing use of the RICO Statute by the Government, this
question is one which will be raised again and again and should
be decided by this Court. Additionally, the Fifth Circuit’s
resolution of this matter, is in conflict with the decision of the
Second Circuit in the case of Unted States v. Huber, 603 F.2d
387 (2nd Cir., 1979).
ARGUMENT
1. DOES RULE 7(c)(1) OF THE FEDERAL RULES OF
CRIMINAL PROCEDURE REQUIRING THAT AN
INDICTMENT BE A ‘‘PLAIN, CONCISE AND
DEFINITE WRITTEN STATEMENT’’ OF THE
ESSENTIAL FACTS CONSTITUTING THE ALLEGED
DEFENSE PUT A HIGHER STANDARD ON THE
DRAFTING OF AN INDICTMENT THAN DO THE
CONSTITUTIONAL REQUIREMENTS AS SET FORTH
BY THIS COURT; AND IF SO, DID THE INDICTMENT
IN THE PRESENT CASE VIOLATE THAT STANDARD?
Throughout all of the proceedings below, including both the
trial and appellate levels, petitioners have complained that the
indictment in the present case did not comport with the
requirements of Rule 7(c)(1) of the Federal Rules of Criminal
Procedure that an indictment be a ‘‘plain, concise and definite
written statemeni of the essential facts constituting the alleged
offense’. Each time the point was raised, the presiding judge or
9
judges would review the indictment in light of the constitution-
al requirements that it fairly inform the defendant of the charge
or charges against him and enable him to plead an acquittal or
conviction in bar to any future prosecution for the same offense.
The following language from the Fifth Circuit’s opinion in this
case is indicative of how virtually all the Courts have handled
this argument:
We are also convinced that the indictment does not trans-
gress Rule 7(c)(1). The allegations clearly put the defend-
ants on notice of the offenses charged, advised them of
the facts giving rise to those offense, and furnished an
adequate foundation for a plea of double jeopardy in the
event of a future prosecution of the defendant for the
same conduct. United States v. L'Hoste,609 F.2d 796,
801 (Sth Cir., 1980).
As can be seen, no mention is made of the requirement that the
indictment be ‘“‘plain, concise and definite’’.
This argument is not merely one of semantics. Petitioners
maintain that the requirerents of Rule 7(c)(1) are different
from and in addition to, the minimal constitutional standards
as set forth by this Court. Yet, no court has ever addressed this
argument directly. 1
The traditional attacks against the vagueness and overbreadth
of an indictment stem from the fact that they gave so little
information that the defendant was unable to prepare his de-
fense and/or protect against double jeopardy, e.g. Hamiing v.
United States,418 U.S. 87 (1974) and Russell v. United States,
1 Petitioners have shepardized Rule 7(c)(1) and have found no cases which
either analyze or interpret its language. To be sure, it has been applied
numerous times but almost always in tandem with constitutional standards.
E.G. United States v. Diecidue, 603 F.2d 535 (5th Cir., 1979). The few cases
which do rely on Rule 7(c)(1) exclusively, simply state that the indictment
either was or was not plain and concise. No court has ever analyzed the
Rule to determine what it requires.
10
369 U.S. 749 (1962). Those constitutional concepts loosely co-
incide with the Rule 7(c)(1) requirement that the indictment be
plain and definite. Consequently, the Rule traditionally got
carried along with the cases analyzing the constitutionality of the
indictment. Indeed, that is exactly what happened in the present
case. Notwithstanding the petitioners’ reliance upon
Rule 7(c)(1), the Fifth Circuit started off its analysis by applying
the constitutional test of an indictment as enunciated by this
Court in Ham/i»g,supra. See United States v. L'Hoste,supta at
800. This ‘‘two prong test’’ is a constitutional test and docs not
deal with Rule 7(c)(1).
The traditional argument made by defendants is that the
indictment has failed to supply an essential element, and is
therefore defective. What about the indictment that does have
all of the essential elements, but has alleged so many elements,
over such a long period of time, supposedly violating so many
statutes, that it defies understanding by the court or the jury.
Such an indictment could theoretically meet the ‘‘two prong’’
Russell-Hamiingtest and yet still violate the provisions of Rule
7(c}(1) because it is not plain, concise, and definite.
Petitioners suggest that this type of indictment is a brand new
phenomenon that is going right past the courts without any-
type of meaningful analysis. This is the age of the so-called
‘white collar crime’’. These crimes are not like the bank
-tobberies, kidnappings, drug sales, etc. with which the courts
and juries have traditionally dealt. The potential complexity of
these types of crimes gives rise to a new type of indictment such
as seen in the present case. It does not suffice to say, as the Fifth
Circuit did in the present case, that the indictmen’s ‘‘length and
complexity (was) necessitated, we think, by the nature of the
crimes charged’’. United States v. L'Hoste, supra at 800. The
Government's ‘‘need’’ has no legitimate place in the considera-
tion of Rule 7(c)(1). At the risk of being redundant, petitioners
point out that the law says that an indictment must be plain,
11
concise and definite. It nowhere says that it can be confused,
lengthy and vague if the crime being charged is a complex one. 2
If this Court or any appellate court had previously analyzed
Rule 7(c)(1), independent of the broad constitutional standard
which it encompasses, then petitioners would be relegated to an
argument that the law was improperly applied in this case. But
to the contrary, one of the most basic statutory provisions in our
law has never been interpreted by any appellate court. The age
of the ‘‘white collar crimes’’ demands that this statute be inter-
preted so that the district courts, the Government, and defense
counsel will be able to properly apply it.
Trained counsel may be able to dissect an indictment so as to
prepare a defense and protect the client against double
jeopardy, as mandated by the Russe//-Ham/ing constitutional
requirements, but only Rule 7(c)(1) can protect the defendant
against the bewilderment which indictments such as the present
one cause to juries. As Judge Jerome Frank said:
We judges ought to take judicial notice of what every
ordinary person knows about juries, and therefore to
recognize that twelve citizens, casually summoned to
serve as jurors, are not trained fact finders and can be
easily bewildered . . . The need for safeguarding de-
fendants from misunderstanding by the jury is particu-
larly acute in conspiracy trials... United States v. Liss,
137 F.2d 995, 1003 (2nd Cir., 1943), cert. denied, 320
U.S. 773.
2 In making this point petitioners do not in anywise concede that the
alleged crime required the complexity and multiplicity of charges set forth
in the conspiracy count (and incorporated by reference in the substantive
count). There was no legitimate reason for including all of the enumerated
crimes within one conspiracy. The Government, the defense, and the Court
well know that it is a fiction to believe that the complexity of the crime
justifies the inclusion in one conspiracy count alleged violations of 18 U.S.C.
§1962, Louisiana Revised Statute 14:118, 18 U.S.C. §1961(1)(a), 18 U.S.C.
§1341, and 18 U.S.C. §1952. Assuming that the alleged crime was so com-
plex that the Government felt that all of these statutes were violated, it
could have broken them down into separ*> counts so that each charge
would be a plain, concise, definite statem as required by Rule 7(c)(1).
12
2. WAS THE COURT'S RULING IN THE PRESENT CASE
TO THE EFFECT THAT THE DEFENDANTS WERE
NOT ENTITLED TO A JURY INSTRUCTION DIS-
TINGUISHING BETWEEN UNLAWFUL BRIBERY AND
‘GOODWILL EXPENDITURES” IN CONFLICT WITH
THE FOURTH CIRCUIT CASES OF UNITED STATES V.
ARTHUR. 544 F.2d 730 (4th Cir., 1976) AND UNITED
STATES V. MANDEL, 591 F.2d 1247 (4th Cir., 1979)?
As noted previously, one of the main issues in this case was
the distinction between goodwill business expendi-
tures and bribery. This distinction was especially acute in this
case because petitioners admitted to buying certain officials free
lunches and airline tickets for vacation trips. They maintained
throughout, however, that these were legitimate business ex-
penditures designed to create and maintain goodwill among
their customers.
Originally, the trial court fashioned a jury instruction based
upon the Fourth Circuit case of United States v. Arthur, 544
F.2d 730 (4th Cir., 1976) which distinguished between these
types of expenditures and bribery. However, upon objection by
the Government, the Court refused to use that instruction
stating that the Louisiana law on bribery was different from that
of West Virginia where the Arthur case originated. The trial
court also refused to give the instruction requested by petition-
ers regardir.g the same issue and based upon the same case. The
Fifth Circuit upheld the judge's decision stating, inter a/ia,
that:
While this Court recognizes that all expenditures made
by businessmen to public servants are not motivated by
the criminal intent necessary for bribery, we cannot fault
the district court for failing to articulate the difference
between licit and illicit business expenditures in its charge
to the jury. United States v. L'Hoste, supra at 808.
13
This reasoning runs directly contra to the Fourth Circuit’s de-
cision in United States v. Arthur,supra. In that case, the defend-
ant was the president of a federally insured bank in West Virginia
and the evidence disclosed that during an approximate three-year
period he took part of the bank’s money to ‘*. . . entertain, do
favors and buy gifts for state and party officials who might be in-
fluential in securing government deposits for the bank.’’ Jd. at
733. The Government maintained that the activity constituted
bribery and was, therefore, a misapplication of the bank’s funds
in violation of 18 U.S.C. §656. The defendant responded that he
was not attempting to bribe anyone but rather used the money
‘‘. . . for the purpose of creating an maintaining goodwill to-
ward the bank among potential customers and persons who
might be inuential with potential customers.’’ Jd. at 733.
The Fourth Circuit reversed because it found the trial court’s
jury instructions erroneous ‘*. . . in that it failed to adequately
distinguish conduct which amounts to bribery from conduct
which is legally innocent.’’ Jd. at 734. The Court noted that:
It does not follow . . . that the traditional business prac-
tice of promoting a favorable business climate by enter-
taining and doing favors for potential customers
becomes bribery merely because the potential customer
is the government. Such expenditures, although inspir-
ed by greater government business, are not intended as a
quid pro quo for that business. They are in no way
conditioned upon the performance of an official act or
pattern of acts or upon the recipient’s expressed or
implied agreement to act favorably to the donor when
necessary. Jd. at 734.
It cannot be emphasized too strenuously here that this point
is important both to the present prosecution and to all federal
bribery prosecutions. Why should a defendant in the Fourth
Circuit be entitled to an Arthurtype instruction when a de-
fendant in the Fifth Circuit is not? This point takes on added
14
significance when viewed in light of the post-Watergate trend
towards white collar prosecution. It is therefore, essential that
there be uniformity in the application and the prosecution of
these types of statutes.
3. WAS THE FIFTH CIRCUIT’S RULING IN THIS CASE
TO THE EFFECT THAT THE FORFEITURE PRO-
VISIONS OF 18 U.S.C. §1963(a) ARE MANDATORY
RATHER THAN DISCRETIONARY, IN CONFLICT
WITH THE SECOND CIRCUIT CASE UNITED STATES
V. HUBER, 603 F.2d, 387 (2nd Cir., 1979)?
The defendents in this case were convicted of the so-called
RICO statute, 18 U.S.C. §1962. The jury made a factual deter-
mination that the defendant, Robert]. L’ Hoste, maintained his
two-thirds stock ownership in R. J. L’Hoste & Co., Inc. in viola-
tion of Section 1962 and that said ownership afforded him
influence over the company. The Government maintained that
once the jury had made that determination the forfeiture of the
said stock to the Government was mandatory under the pro-
visions of 18 U.S.C. §1963(a). The defense countered that the
language of that statute was clear that the Court had discretion
and, although it had the right to forfeit, it was not required to
do so. The trial court determined that it did have discretion and
chose to exercise that discretion by not forfeiting the stock to the
Government. The Fifth Circuit, however, reversed the trial
court holding that the forfeiture provisions of the RICO statute
were mandatory and that the trial court had no discretion in
their application.
This question was one of first impression by the Fifth Circuit
and has not been decided by any other appellate court. Con-
sidering the increased use of the RICO statute by federal
prosecutors and the harsh and unusual nature of the forfeiture
provisions, petitioners respectfully suggest that this issue is
appropriate for consideration by this Court.
15
It is important to note here that the forfeiture provisions of
the RICO statute partially repealed a law which has stood for
ovtr one hundred eighty years. That law, 18 U.X.X. §3563,
provides that: ‘‘No conviction or judgment shall work corrup-
tion of blood or forfeiture of estate.’’ See United States v.
Rubin, 559 F.2d 975 (Sth Cir., 1977). Although this Country
has always had i» rem forfietures, it has never allowed, until‘
RICO, in personam forfeitures. United States v. Rubin, supra.
Therefore, the application and interpretation of this statute is
extremely important.
This issue becomes even more crucial when viewed in light of
the broad provisions of the RICO statute itself. All that is re-
quired for conviction under RICO is two violations of enumer-
ated state or federal offenses committed with ten years of each
other. 18 U.S.C. §1961(5). As Judge Tate stated in his dissent-
ing opinion in the denial of the rehearing in this case:
I cannot at the present believe it was the intention of
Congress to leave to a prosecutor alone the determination
to achieve forfeiture of an accused15 property by prosecut-
ing him under the Federal Racketeering Statute for what,
as statutorily defined with regard to the present case, repre-
sents only two or more violations of local bribery statutes or
of somewhat esoterically applied federal crimes, themselves
punishable by imprisonment or fine, but not by forfeiture.
United States v. L'Hoste, denial of rehearing en banc,
Appendix B.
Judge Tate went on to say that:
It is well to note, at this time, that no matter how isolated
and minor two ‘‘racketeering’’ incidents might be in the
context of the entire business conducted by the enterprise,
the federal statute literally construed is violated, and the
defendant’s entire interest in the enterprise is subject to
forfeiture under the statute. I emphasize this, because it is
not readily conceivable to me that the Congress intended
automatic forfeiture of an entire ownership in a business
enterprise, however and whenever acquired (whether by
inheritance or by legitimate business operations), irrespec-
16
tive of the magnitude of the ‘‘racketeering’’ conduct in-
volved. [did
The only other court which has addressed this issue, did so
indirectly. In discussing the defendant’s argument that the for-
feiture provisions of the RICO statute violated the Eighth
Amendment’s prohibition against cruel and unusual punish-
ment, the Second Circuit noted that the trial judge has ‘‘a
certain amount of discretion in avoiding draconiam (and per-
haps potentially unconstitutional) applications of the forfeiture
provisions. United States v. Huber,603 F.2d 387, at 397 (2nd
Cir., 1979). Based upon that discretion, the Court rejected the
defendant’s argument. Therefore, although this issue has only
been addressed by two courts, each of them have reached dif-
ferent results.
It should be noted also that the Fifth Circuit not only ruled
that the provisions of the RICO statute were mandatory, but it
also ruled that they were not subject to the ‘‘suspension’’ pro-
visions of the Federal Probation Act. (18 U.S.C. §3651-3656).
Again, this issue has never been decided by this Court or any
other appellate court. The Fifth Circuit could find no authority
for its position but relied on the fact that there was no indica-
tion that Congress intended to allow the suspension of for-
feiture under the Federal Probation Act. United States v.
L'Hoste, supra at 814. However, this reasoning does not take
into account the clear language of the statute. 18 U.S.C. §3651
provides in part that:
Upon entering a judgment of conviction of any offense
not punishable by death or life imprisonment, any court
having jurisdiction to try offenses against the United
States when satisfied that the ends of justice and the best
interest of the public as well as the defendant will be
served thereby, may suspend the imposition or execu-
tion of sentence .. .fEmphasis supplied.)
17
The word ‘‘sentence’’ is not limited to either imprisonment,
fines, or forfeitures. Rather, it is broad enough to include all of
them. In fact, it has already been interpreted to include fines.
United States v. Beacon Piece Dying and Finishing Co., 455
F.2d 216, 217 (2nd Cir., 1972). There is no logical reason why it
also should not be interpreted to include forfeitures. This is
particularly true since forfeitures have never been favored in our
law. Howard v. Federal Crop Insurance Corp., 540 F.2d 695
(4th Cir., 1971).
In view of the importance of this issue and the unusual and
disfavored nature of the forfeiture penalty, petitioners respect-
fully suggest that this matter is appropriate for hearing before
this Court.
CONCLUSION
For the above reasons, a Writ of Certiorari should be issued to
review the judgment and opinion of the United States Court of
Appeals for the Fifth Circuit.
Respectfully submitted,
MURRAY, MURRAY, ELLIS,
BRADEN & LANDRY
A Professional Law Corporation
JULIAN R. MURRAY, JR.
612 Gravier Street
New Orleans, Louisiana 70130
(504) 581-3141
Attorney for Petitioners
18
CERTIFICATE
I HEREBY CERTIFY that a copy of the foregoing Petition for
Writ of Certiorari has been med on the respondent by placing
copies of same in the United States mail, postage prepaid,
addressed to:
Mr. John Volz Solicitor General of the
United States Attorney United States
Hale Boggs Federal Building § United States Department of
500 Camp Street Justice
New Orleans, Louisiana 70130 Washington, D.C.
| ae | , 1980.
JULIAN R. MURRAY, JR.
la
APPENDIX ‘‘A’’
UNITED STATES v. L’HOSTE
UNITED STATES of America,
Plaintiff- Appellee,
v.
Robert J. L’HOSTE, R. J. L’Hoste & Company, Inc., Clarence
Eugene Rogers and Marvin Cochran, Defendants-Appellants.
In re UNITED STATES of America, Petitioner.
Nos. 78-5593, 79-1606.
United States Court of Appeals,
Fifth Circuit.
Jan. 10, 1980.
Defendants were convicted in the United States District Court
for the Eastern District of Louisiana, Charles Schwartz, Jr., J., of
conspiracy and racketeering and they appealed. The Government
petitioned for a writ of mandamus directing the district court to
order forfeiture of one defendant’s interest in a company allegedly
involved in racketeering. The Court of Appeals, Tjoflat, Circuit
Judge, held that: (1) the indictment was not unconstitutionally
broad or vague; (2) defense counsel was not entitled to personally
voir dire prospective jurors; (3) the Louisiana bribery statute pro-
hibited the entertainment of public officials and favoring them
with gifts in order that business expectations might be enhanced;
(4) the district court did not err in reinstructing the jury on con-
spiracy; and (5) the forfeiture provision of the racketeering statute
was mandatory rather than discretionary.
Affirmed in part; writ of mandamus to issue.
2a
1. Indictment and Information —71.-4[3]
In prosecution for conspiracy and racketeering, indictment
adequately informed defendants of pending charges and enabled
them to plead acquittal or conviction to bar any future prosecu-
tions for same offenses; furthermore, indictment did not violate
single conspiracy rule. 18 U.S.C.A. §§ 2, 371, 1962(c).
2. Jury —131(1]
Defense counsel was not entitled to personally voir dire prospec-
tive jurors. Fed. Rules Crim. Proc. rule 24(a), 18 U.S.C.A.
3. Bribery—1[1]
Practice of entertaining public officials and favoring them with
gifts in order that business expectations might be enhanced could
constitute violation of Louisiana bribery statute; bribery was not
restricted to those acts made in anticipation of specific official
action. LSA—R.S. 14:118.
4. Criminal Law —1152[1]
Trial court is given broad discretion in weighing its jury instruc-
tions and will not be reversed as long as charge correctly states
substance of law.
5. Criminal Law —829(1], 830
Trial judge is under no obligation to give requested instruction
that misstates the law, is argumentative, or has been covered
adequately by other instructions.
6. Criminal Law —865(2]
Where trial court reinstructed jury with portion of conspiracy
3a
charge responsive to its inquiry, reminded jury of prior instruc-
tions, and advised it to consider entire charge, including the sup-
plementary part, as a whole, there was no error.
7. Forfeitures —3
Forfeiture of property involved in violation of racketeering
statute was mandatory rather than discretionary. 18 U.S.C.A.
§ 1963(a).
8. Forfeitures —5
District court’s ability to set terms and conditions of forfeiture of
property involved in racketeering is limited and any abuse of its
discretion is subject to review of Court of Appeals. 18 U.S.C.A.
§ 1963(a)
9. Forfeitures —5
After jury returned guilty verdict on charges of conspiracy and
racketeering, district court’s submission to jury of questions of
whether defendant maintained his interest in company in violation
of racketeering statute, and whether his interest in company
afforded source of influence over any enterprise which he had
established, operated, controlled, conducted or participated in
conduct of in violation of racketeering statute formed adequate
basis on which to order forfeiture of defendant’s interests in com-
pany involving racketeering. 18 U.S.C.A. §§ 1962(c), 1963(a).
10. Forfeitures — 5
Federal Probation Act did not give district court power to sus-
pend imposition or execution of forfeiture. 18 U.S.C.A. § 3651.
4a
On Petition for Writ of Mandamus to the United States District
Court for the Eastern District of Louisiana.
Before TJOFLAT and VANCE, Circuit Judges, and
ALLGOOD,”* District Judge.
TJOFLAT, Circuit Judge:
Robert J. L’Hoste, R. J. L’Hoste & Company, Inc., Clarence
Eugene Rogers, and Marvin Cochran appeal their convictions for
conspiracy, 18 U.S.C. § 371 (1976)! and racketeering 18 U.S.C. §§
2, 1962(c) (1976), 2 arising out of their involvement in sewer con-
struction contracts for Jefferson Parish, Louisiana. They challenge
the sufficiency of the indictment, the method .of jury selection,
and the adequacy of the trial court’s instructions to the jury. Con-
solidated with this appeal is the Government's petition for a writ
of mandamus directing the trial court to order the forfeiture of
L’Hoste’s interest in R. J. L’Hoste & Company, Inc. under 18
U.S.C. § 1963(a) (1976). See slip opinion 2295, page --- infra. We
affirm the convictions and grant the petition for mandamus.
* District Judge for the Northern District of Alabama, sitting by designa-
tion.
1 18 U.S.C. § 371 provides: .
If two or more persons conspire either to commit any offense against the
United States, or to defraud the United States, or any agency thereof in
any manner of for any purpose, and one or more of such persons do any act
to effect the object of the conspiracy, each shall be fined not more than
$10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the con-
spiracy, is a misdeanor only, the punishment for such conspiracy shall not
exceed the maximum punishment provided for such misdemeanor.
2 18 U.S.C. § 1962(c) provides:
It shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities or which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of
such enterprise’s affairs through a pattern of racketeering activity or col-
lection of unlawful debt.
5a
I
The history of this prosecution is convoluted and repetitious. On
December 1, 1977, the federal grand jury in the Eastern Di<crict of
Louisiana indicted thirteen defendants, including the appellants,
for conspiracy and racketeering activity. After the defendants
moved to dismiss the indictment for overbreadth and vaguensss,
the grand jury returned a superseding indictment on February 27,
1978, charging the same offenses and naming eleven defendants,
including the appellants. The district court denied a motion to dis-
miss the superseding indictment, and trial commenced on March
13, 1978. The jury convicted the four appellants and another
corporation on both the conspiracy and racketeering counts.3 In
subsequent proceedings, the court instructed the same jury to de-
cide whether any property was subject to forfeiture under section
1963, but dismissed the jury when it became deadlocked. On the
day of sentencing, the court granted on various grounds the
defendants’ motion for a new trial, criticizing in the process the
complex nature of the indictment.
At this point the case was reassigned to another district judge.
Meanwhile, in an attempt to remedy any infirmities that may have
existed in the indictment, the Government obtained a third
indictment, again charging the appellants with conspiracy and
racketeering activity. The defendants moved for dismissal on
grounds of vagueness and overbreadth. The motion was denied,
and the defendants’ petition for a writ of mandamus, asserting the
same grounds, was rejected by this court. Due to the extensive
publicity the case had received, the court granted amotion for
change of venue, and the trial was moved to Houston, Texas. Trial
began on July 24, 1978. During the first week, defense counsel
moved for a mistrial, claiming that this court’s panel decision in
United States v. James, 576 F.2d 1121 (Sth Cir. 1978), modified,
3 The other corporation was George C. Eckert Enterprises, Inc. After its
conviction was set aside, see text infra, this corporation, along with the
appellants, was reindicted, but the charges as to it were eventually dismiss-
ed on tl: “overnment’s motion.
6a
590 F.2d 575 (Sth Cir,) (en banc), cert. denied, ------- U.S. ----, 99
S.Ct. 2836, 61 L.Ed.2d 283 (1979), prevented a district court from
trying to a jury a conspiracy case, such as this one, without first
holding a hearing, in the absence of the jury, to rule upon the ad-
missibility of any out-of-court coconspirator statement the prose-
cutor might seek to introduce in evidence. The district court, in
order to comply with the James mandate, granted a mistrial on
July 28, 1978. A James hearing was conducted, and, on August 1,
1978, a third jury trial began.
The prosecution’s evidence implicated the defendants in a
labrinthine plot of public bribery. Between 1970 and 1977, Jeffer-
son Parish awarded sewer contracts on an emergency ‘‘no-bid cost-
plus’’ basis on the recommendation of Ray Condon, the director of
its Department of Sewerage and Drainage. These contracts, financ-
ed in large part with federal funds, would have been performed at
a substantially lower cost had they been put out for competitive
bidding. R. J. L’Hoste & Company, Inc. received seventy-seven
percent of the emergency work, totally over $5 million, through a
scheme of kickbacks to Condon and others involved in awarding
the contracts. Testimony indicated that the costs of these contracts
were padded with excessive payrolls and machinery rentals. Job
costs, and consequently R. J. L’Hoste & Company Inc.’s profits,
were inflated further when L’Hoste, for no legitimate reason,
directed that the work be delayed. One job that normally should
have lasted a month was drawn out nearly eight months. Dilatory
tactics included working at a slow pace, digging up good pipe,
making unnecessary repairs, and stopping up water pipes. Ist
Supp. Record, vol. 12, at 450, 478-81. During this time, employ-
ees occupied their working hours with such unproductive activities
as resting under trees, going to the store or snowball stand, and sit-
ting around shooting dice. /d@. at 478-79. While on R. J. L’Hoste &
Company, Inc.’s payroll, employees also did construction and
landscaping work at Condon’s residences. Jd. at 453-56, 483-87.
Some of the equipment contributing to the cost of the job was run
with the clutch disengaged merely to make noise; some was run
7a
only at the times an inspector was present; some was simply inop-
erable. Jd. at 456-57, 481-83, 504-06. The inflated rentals for the
equipment were channeled to Condon, Frederick Hoth (consulting
engineer for the Department of Drainage and Sewerage), and
others through conduit rental companies in which they held
interests.
Besides the rental scheme, the evidence showed L’Hoste’s
arranging for Condon and Hoth to take trips to such places as
Acapulco, Las Vegas, and Hawaii, and providing other ‘‘per-
quisites,’’ including gifts of interest in property purchased by
L’Hoste. The defense attempted to show that the responsibility for
the laggard pace and goldbricking rested with Carl Calamia, who
had been general superintendent of R. J. L’Hoste & Company,
Inc. before being fired and later testifying for the Government
under a grant of immunity. The jury, however, was not persuaded
that the defendants were inculpable; on August 9, 1978, after eight
days of trial, it found all four of them guilty on both counts. The
jury then was asked to determine whether L’Hoste maintained an
interest in his company in violation of section 1962 and whether
his interest allowed him to influence his company; the jury was ad-
vised, however, that the actual decision on forfeiture would be
made by the court. The jury found that L’Hoste had maintained
an interest that permitted him to influence r. J. L’Hoste & Com-
pany, Inc. in violation of section 1962.
The district court denied an array of post-trial motions and set
sentencing for September 13, 1978, in New Orleans. L’ Hoste re-
ceived fines totalling $35,000 and a sentence of four years in
prison, but the court declined to invoke the forfeiture provisions
against him. R. J. L’Hoste & Company, Inc. was fined $35,000,
Rogers was fined $2,500 and placed on probation, and Cochran re-
ceived probation. From the judgments of conviction the appellants
bring this appeal. The Government's petition for a writ of
mandamus arises from the district court's refusal to order a forfeit-
ure of L’Hoste’s interest in his company.
Appellants raise several points of error concerning the indict-
ment, the method of jury selection, and the court’s instructions to
the jury. We address these issues in turn.
A. The Sufficiency of the Indictment
[1{ Appellants first contend that the indictment under which
they were convicted is unconstitutionally broad and vague and
violative of Fed.R.Crim.P. 7(c)(1), which requires that the indict-
ment be ‘‘a plain, concise and definite written statement of the
essential facts constituting the offense charged.’’ To assess the
validity of appellants’ challenge, we must evaluate the indictment
under the two-prong test laid down by the Supreme Court in
Hamling v. United States,418 U.S. 87, 117, 97 S.Ct. 2887, 2907,
41 L.Ed.2d 590 (1974). Under this test, the indictment (1) must
contain the elements of the offense and fairly inform the defend-
ant of the pending chages and (2) must enable the defendant to
plead acquittal or conviction to bar any future prosecution for the
same offense. United States v. Welliver 601 F.2d 203, 207 (Sth
Cir. 1979); United States v. Guthartz, 573 F.2d 225, 227 (Sth
Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173
(1978); see United States v. Diecidue, 603 F.2d 535, 539-548 & n.
1 (Sth Cir, 1979).
Here, the Government modified the indictment twice in an
attempt to meet the requirements of Ham/ing and rule 7(c)(1).
Although the indictment charged only one count of conspiracy
and one count of racketeering activity in a total of fourteen pages,
its length and complexity were necessitated, we think by the
nature of the crimes charged. Both counts alleged violations of
Louisiana and federal law spanning more than seven-and-one-half
years and involving more than a dozen different parties. Due to
the intricate interrelationships among the many parties within this
extended time frame, a lengthy indictment was required to set
9a
forth the elements of the offenses charged, to give the defendants
adequate notice of the charges, and to provide a basis for a former
jeopardy plea in any sujsequent criminal proceedings stemming
from the defendants’ conduct in this case.
The conspiracy count contains four major sections. Section A
identifies the defendants and the others who participated in the
events that gave rise to the charges. Section B alleges that the
defendants and others formed a conspiracy (1) to defraud the
United States in the use of federal revenue sharing funds, 18
u.s.c. § 371 (1976), (2) to defraud Jefferson Parish of public funds
through mail fraud and false pretenses, 18 U.S.C. § 1341 (1976),
(3) to travel in interstate commerce and use facilities in interstate
commerce with intent to commit public bribery under Louisiana
law, 18 U.S.C. § 1952 (1976), and (4) to be associated with enter-
prises through racketeering activity that affected interstate com-
merce, 18 U.S.C. § 1962(c) (1976). Section C of the conspiracy
count explains the methods used by the conspirators to accomplish
their goal. the acquisition of emergency sewer repair contracts.
These methods, which often required the use of the mails, in-
cluded: a rental kickback scheme that provided monies to the
parish officials involved in letting the contracts and, on one con-
tract that was competitively bid, enabled R. J. L’Hoste & Com-
pany, Inc. to obtain inside information that assisted it in submit-
ting the low price; and additional bribery payments, in the form of
vacations and other gifts, to those officials and to others who
supervised the contract work. Section D alleges thirty-one overt
acts, including the date of each and the involvement of the
conspirators, committed in furtherance of the conspiracy.
The racketeering count incorporates the allegations of fact of the
conspiracy count and states that the defendants engaged in racket-
eering activity, in violation of 18 U.S.C. § 1962(c), consisting of
mail fraud, 19 U.S.C. § 1341; public bribery proscribed by Louisi-
ana law, La.Rev.Stat.Ann. § 14:118(1) (West 1975 & Supp.1979);
and interstate travel and the use of interstate instrumentalities
10a
with intent to commit such bribery, 18 U.S.C. § 1952. In addi-
tion, the racketeering count identifies the type of interest subject
to forfeiture under 18 U.S.C. § 1963 (1976).
After assaying the indictment against the Ham/ing criteria, we
are convinced that they have been met. We are also convinced that
the indictment does not transgress rule 7(c)(1). The allegations
clearly put the defendants on notice of the offenses charged,
advised them of the facts giving rise to those offenses, and
furnished an adequate foundation fora plea of double jeopardy in
the event of a future prosecution of the defendant for the same
conduct.
‘The appellants argue that the indictment violates the single
conspiracy rule of Kotteakos v. United States, 328 U.S. 750, 66 S.
Ct. 1239, 90 L.Ed. 1557 (1946). We cannot agree. In Kotteakos,
the Supreme Court ruled that the defendants, charged with only
one conspiracy, had suffered substantial undue prejudice in being
convicted on evidence that showed, the Government conceded,
eight different conspiracies. The only common nexus among the
conspiracies was the participation of one man in each of them. The
case before us is more like United States v. Wayman, 510 F.2d
1020 (Sth Cir) cert. denied, 423 U.S. 846, 96S. Ct. 84, 46 L.Ed.2d
67 (1975), where we held that ‘‘[p] roof of multiple conspiracies
does not automatically constitute a fatal variance from a single
(conspiracy) charged ...’" Id at 1025. Instead, the inquiry must
focus on whether the variance affects the substantial rights of the
accused. If the Government proves multiple conspiracies and a de-
fendant’s involvement in at least one of them, then clearly there is
no variance affecting that defendant’s substantial rights. Jd. at
1025.
We view the proof in this case as having established one conspir-
acy, in which each appellant was a member. That conspiracy was
formed and carried out to achieve but one objective: the acquisi-
tion and maintenance of Jefferson Parish’s sewer repair work under
cost-plus ‘‘emergency’’ contracts. The involvement of each appell-
lla
ant was for the purpose of accomplishing that objective. We are
unable to glean proof of other conspiracies from the evidence pre-
sented to the jury, and the appellants have pointed to none. Their
argument is nothing more than a bald allegation that this is a
multiple conspiracy case that runs afoul fo the Kotteakos rule.
Even were we to suppose that each sewer repair job was the object
of a separate conspiracy, a supposition appellants have not asked us
to make, the convictions still must be upheld. We say this because
the evidence demonstrates that each appellant played a role in the
acquisition or execution of at least one of those jobs. Moreover, we
are convinced that the manner in which the Government's case was
presented did not impair the substantial rights of any appellant.
B. The Method of Jury Selection
[2] Appellants next claim that the trial court committed error
by refusing to allow their counsel personally to voir dire the
prospective jurors during the jury selection process. Though the
defense did not move for a mistrial at that time, they did so later in
the trial when one of the jurors was disqualified and had to be re-
placed with an alternate juror.4 The appellants do not suggest that
4 During the trial, the court noticed that one of the jurors appeared to
have difficulty paying attention and understanding what was happening.
After this fact was brought to the attention of counsel, all parties agreed to
continue the trial but to observe the joror’s conduct. Before the jury retired
to deliberate, the court examined the juror in camera and concluded that
she had a hearing impairment and had not heard portions of the testimony.
The court disqualified the juror and replaced her with the first alternate
juror. Defense counsel then moved for a mistrial, claiming that the court’s
refusal to permit them personally to examine the venire during the jury
selection process had deprived appellants of a fair trial. The defense had not
objected to the selection of the aiternat during voir dire, and agreed that
the juror who could not hear was not competent to sit on the jury. Because
the disabled juror was replaced with an alternate whom the defendants did
not challenge, they waived any contention that the seating of the alternate
alone operated to deny appellants a fair trial. For appeal purposes, appell-
ants are left with the argument that the jury selection method employed by
the court in the context of this case either produced a tainted jury as a
matter of law or made the likelihood of taint so great that we should
assume, conclusively, that a fair and impartial jury was not chosen. See
test immediately infra.
12a
the court’s method of jury selection resulted in the impanelment
of one or more jurors, including the alternate, who were unable to
try the case faily and impartially. Rather, their argument is that a
court-conducted jury voir dire is so inherently unfair, especially in
a complicated and notorious case such as this one, as to deny a fair
trial as a matter of law.5
The answer to appellants’ argument is governed by-
Fed.R.Crim.P. 24.6 Under rule 24(a), the trial court is given wide
discretion in deciding how to conduct voir dire. In the interests of
judicial economy and efficiency, the trial court may deny counsel
the privilege of addressing the venire by choosing to conduct
the entire voir dire itself, allowing both the prosecution and de-
fense the opportunity to supplement the court’s examination. This
supplemental examination of the venirement may be conducted
by counsel personally, or by the court alone. In this case, the court
chose the second method.
5 At the heart of appellants’ argument that a courteonducted voir dire is
inherently unfair is the motion that it impairs counsel's ability to fashion a
firm trial strategy. In presenting their motion for mistrial, the defense,
though acknowledging that the disabled juror no longer could serv, com-
plained that the seating of the alternate as a member of the jury was so dis-
ruptive of their trial strategy that it impaired their ability to muster a de-
fense for their clients. The alternate juror was an engineer, and counsel's
strategy, they submitted, was not tailored to the engineer's assumed
tastes. Had counsel been allowed personally to examine the venirement
during jury selection, the argument proceeds, the hearing impediment of
the disabled juror would have been discovered and she would have been ex-
cused for cause. Someone else would have taken her place; the replace-
ment, instead of the engineer, would have gone to deliberations; the de-
fense trial strategy would have maintained a greater chance of success.
Even if the engineer had been substituted for the disabled juror during the
selection process, the defendants, it is explained, would have had ample
opportunity to alter their strategy accordingly.
The trial judge considered the argument frivolous. Record, vel. 16, at
1697. We need not consider it now. As we point out in the test infra, if de-
fense counsel wanted a more extensive examination of the venirement, in-
cluding the disabled juror, all they had to do was request the court to make
further inquiry. No requests were forthcoming; there were no objections to
the examination the court made. The trial judge cannot be assigned with
error because the disabled juror’s impediment did not surface on voir dire.
6 The relevant parts of Fed.R.Crim.P. 24 provide:
(a) Examination. The court may permit the defendant or his attorney
and the attorney for the government to conduct the examination of prospec-
13a
Appellants do not suggest that the trial judge refused to ques-
tion the veniremen as they proposed; instead, their contention is
that United States v. Ledee, 549 F.2d 990 (5th Cir.), cert. denied,
434 U.S. 902, 98 S.Ct. 297, 43 L.Ed.2d 188 (1977), required the
court to honor counsel’s request to address the veniremen directly.
We do not read Ledee as according a defendant the right to have
his counsel conduct, in whole or in part, the voir dire inquiry. To
the contrary, the holding of Ledee is that the scope of the inquiry
and who conducts it are within the sound discretion of the trial
judge. Id. at 992-93.7 Appellants have shown us nothing to indi-
cate that the trial judge abused his discretion in this case. See
Hawkins v. United States, 434 F.2d 738, 739 (Sth Cir. 1970). In
our view, he conducted an even-handed examination of the venire.
The areas of concern to the parties were covered; no one objected
to the content of the court’s inquiry or the manner in which it was
made. In sum, there is no merit to appellant’s claim of error in the
conduct of the jury voir dire.
tive jurors or may itself conduct the examination. In the latter event the
court shall permit the defendant or his attorney and the attorney for the
government to supplement the examination by such further inquiry as it
deems proper or shall itself submit to the prospective jurors such additional
questions by the parties or their attorneys as it deems proper.
(ce) Alternate Jurors. The court may direct that not more than 6 jurors in
addition to the regular jury be called and impanelled to set as alternate
jurors. Alternate jurors in the order in which they are called shall replace
jurors who, prior to the time the jury retires to consider its verdict, become
or are found to be unable or disqualified to perform their duties. Alternate
jurors shall be drawn in the same manner, shall have the same qualifica-
tions, shall be subject to the same examination and challenges, shall take
the same oath and shall have the same functions, powers, facilities and
privileges as the regular jurors. . .
7 There is language in Ledee suggesting that trial counsel may be in a
better position than the judge to uncover a venireman’s bias and prejudice
on issues involved in the case. United States v. Ledee, 549 F.2d at 993. That
language is obviously dicta, suggesting the course a trial judge might follow
in a situation where it might be difficult to obtain an impartial jury. The
language could not have bound the trial judge to follow a given course of
action in this case.
l4a
C. The Bribery Instruction
The Government’s proof established that the defendants ob-
tained a lion’s share of Jefferson Parish’s sewer repair business
through a furtive plan of bribery. The bribes took many forms: ex-
cessive payments for equipment rented from companies owned by
parish officials; gifts of land; hunting trips; vacations to Acapulco,
Yucatan, Las Fegas, Seattle, Hawaii, New Orleans, Dallas,
Houston, and Walt Disney World; and campaign contributions
many in excess of $10,000. The defendants’ response to this proof
was twofold. First, they launched a scathing cross-examination of
the prosecutions’s most damaging witnesses, Frederick Hoth and
Carl Calamia, who, under grants of immunity, described the
rental equipment arrangement in detail. These witnesses were so
discredited, it was argued, that the Government’s theory that the
sewer contracts were obtained through a kickback scheme was
virtually destroyed. Second, the defendants treated as mere
‘‘goodwill’’ expenditures the few ‘‘vacations’’ and ‘‘free lunces’’
they admittedly gave to certain parish officials and inspectors on
the jobs. The defendants likened these gifts to customer entertain-
ment practices routine in the private business world, and argued
that since the entertainment practices could not be considered as
bribery payments under Louisiana law, neither should the gifts.
The balance of the alleged bribes they labeled legitimate campaign
contributions. The appellants submit that the trial court commit-
ted reversible error when it refused to instruct the jury on the dis-
tinction between bribery and goodwill expenditures and thus pre-
vented the jury from accepting their closing arguemtn—that the
defendants should be acquitted because entertainment expenses
for goodwill are not bribes.
[3] The Louisiana bribery statute, which is applicable to both
counts of the indictment,8 defines public bribery as:
8 Violation of the Louisiana bribery statute, La.Rev.Stat.Ann. §
14:118(1) (West 1974 & Supp.1979), was alleged to be an object of the con-
spiracy in count one and a racketeering activity in count two.
15a
the giving or offering to give, directly or indirectly, anything of
apparent present or prospective value to any of the following
persons, with the intent to influence his conduct in relation to
his position, employment or duty:
.. . Public officer or public employee
.. . Any person who has been elected oz appointed to public
office, whether ornot said person has assumed the title or duties
of such office.
La.Rev.Stat.Ann. § 14:118 (West 1974 & Supp.1979). We can
find nothing in the legislative history or the case law that indicates
whether the practice of entertaining public officials and favoring
them with gifts in order that business expectations might be en-
hanced is proscribed by the Louisiana bribery statute. Thus, we
must draw on the language of the statute itself for guidance as to
the circumstances under which gifts to public officials may be
made without incurring the badge of bribery.
The statute makes no distinction on its face between goodwill
expenditures and bribery; it encompasses the giving of anything of
apparent value when motivated by an intent to influence official
conduct. The requisite criminal intent, then, is formed when the
gift or favor is intended to influence official action. The district
court, over the defendants’ objection, opted for a jury instruction
that we consider to be facially consistent with this statutory langu-
age. After reading the statute to the jury, the court said:
In order to establish that a Defendant is guilty of public bribery
under this law, it must be proved beyond a reasonable doubt:
1) The giving or offer to give or something of apparent present
ot prospective value by the Defendant;
2) That the recipient of the gift or offer is a public officer or
public employee whether appointed or elected; and
3) That the gift or offer to give is for the purpose of influencing
the official duties of the public office or employee.
16a
The crimes charged in this case require proof of specific intent
before the defendant can be convicted. Specific intent, as that
terms implies, means more than the general intent to commit the
act. To establish specific intent the Government must prove that
the defendant knowingly did an act which the law forbids, pur-
posely intending to violate the law. Such intent may be deter-
mined from all the facts and circumstances surrounding the case.
As I have told you, an act is done knowingly if done voluntarily
and intentionally, and not because of mistake or accident or other
innocent reason.
As you know the Government claims that, in connection with
both counts of the indictment, that defendants violated the Louis-
iana statute forbidding public bribery as I have defined that
statute to you previously.
It is the position of the Defense that any gifts orpayments to
public officials made by Defendants do not constitute bribery for
the reason that any such gifts or payments were not motivated by
any purpose or intent to influence the public officer’s official
actions or duties.
It is for you, the jury to determine the merits of this defense
from the facts in this case and in accordance with the elements of
Louisiana Public Bribery Law about which I have instructed you.
Ist Supp. Record, vol. 16, at 1681-82, 1699-89. We consider the
court’s charge to be consistent with the Louisiana bribery statute
because it discussed gifts to a public official or employee made
with specific intent to influence the official duties of the public
servant. The charge does not embrace mere campaign contribu-
tions or innocuous gifts made without expectation of official action
in return. The jury was clearly authorized to accept the defendants’
theory of the case—that their favors to public officials and employ-
ees were not made to influence the discharge of their duties. The
17a
appellants contend, however, that the court’s charge did not go far
enough; the jury should have been instructed that anything busi-
ness men typically do for their customers to develop and maintain
business, by way of gifts, entertainment and the like, cannot be
labeled bribery merely because the customer is the government.
The defense proposed an instruction embracing this notion.9 The
court tentatively accepted the instruction, 19 but at the charge con-
ference decided that it was not compatible with the Louisiana
bribery law and declined to give it.
9 The defendants’ requested instruction, based on United States v.
Arthur, 544 F.2d 730 (4th Cir. 1976), read:
There has been some discussion in this case of campaign contributions,
gifts or gratuities made to public officials. Campaign contributions are
not illegal and are in fact a part of our political system. However, they
may be used to disguise a bribe or an attempted bribe. This is so if there
is a specific intent to influence the official to grant a special favor. That is,
the funds were given in exchange for the doing of some particular official
act.
On the other hand, there are other legitimate business reasons for
making gifts or campaign contributions. A generalized hop of some future
benefit is not sufficient to conclude that bribery has occurred. The com-
mon business practice of entertaining and doing favors for potential cus-
tomers does not become illegal merely because the customer is a govern-
ment agency. If you find that the gifts were made, but that the gifts
motivated by no more than customary business reasons or a general hope
of better business in the future, then you should find that bribery did not
take place.
Record, vol. 6, at 1253.
10 The defendants’ proposed instruction was redrafted by the district
court, apparently to bring it into conformity with the language of United
States v. Arthur, 544 F.2d 730, 734-35 (4th Cir. 1976), as follows:
With respect to the allegations of public bribery which form a part of
the offenses charged in both Count 1 and Count 2, I instruct you that ac-
cording to the law not every gift, favor, or contribution to a government
or political official constitutes bribery. It is universally recognized that
bribery occurs only if the gift is coupled with a particular criminal intent
. . «. That intent is not supplied merely by the fact that the gift was moti-
vated by some generalized h ope or expectation of ultimate benefit on the
part ofthedonor . . .. “Bribery” imports the notion of some more or less
specific guid pro quo (which is a legal term which means in exchange for)
for which the gift or contribution is offered or accepted . . .. This re-
quirement of criminal inteiit would, of course, be satisfied if the jury
were to find a “course of conduct of favors or gifts flowing” to a public
official tn exchange for a pattern of official actions favorable to the donor
18a
[4,5] The appellants claim that the trial court’s instruction to
the jury on the Louisiana bribery statute constitutes reversible error
because it swept too broadly, expanding the definition of bribery
to encompass innocent conduct. In assessing appellants’ claim, we
must remember that a trial court is given broad discretion in word-
ing its jury instructions and will not be reversed as long as the
charge correctly states the substance of the law. Cain v. United
States, 274 F.2d 598 (Sth Cir.), cert. denied, 362 U.S. 952, 80
S.Ct. 864, 4 L.Ed.2d 869 (1960). A trial judge is under no obliga-
tion to give a requested instruction that misstates the law, is
argumentative, or has been covered adequately by other instruc-
tions. Pass v. Firestone Tire & Rubber Co., 242 F.2d 914, 920 (Sth
Cir. 1957); Bryant v. Hall, 238 F.2d 783, 789 (Sth Cir. 1956). We
have already observed that the court’s instruction was consistent
with the statute, and that it set out each of the elements making
up the offense of bribery. The appellants, citing a Fourth Circuit
decision, United States v. Arthur, 544 F.2d 730 (4th Cir. 1976),
nevertheless insist that the instruction was too broad because it did
not restrict bribery to those acts made in anticipation of specific
official action. We fail to, see the applicability of the Arthur
rationale in this case and conclude that the trial court was correct in
refusing to charge the jury, as the defense proposed, in the lang-
uage of the Arthuropinion.
even though no particular gift or favor is directly connected to any parti-
cular official act . . .. It does not follow however that the traditional
business practice of promoting a favorable business climate by entertain-
ing and doing favors for potential customers becomes bribery merely be-
cause the potential customer is the government. Such expenditures, al-
though inspired by the hope of greater government business are not in-
tended as a quid pro quo for that business; they are in no way conditioned
upon the performance of an official act or patter of acts or upon the recipi-
ent’s express or implied agreement to act favorably to the donor when
necessary . . .. The benefit must be given in exchange or as compensa-
tion for official action—and not merely as an unconditional gift with the
hope that a favorable business climate will result—in order to be classi-
fied as bribery. The crucial distinction between “goodwill” expenditures
and bribery is . . . the existence or nonexistence of criminal intent that
the benefit be received by the official as a quid pro quo or in other words
an exchange for some official act, pattern of acts, or agreement to act
favorably to the donor when necessary.
Joint Trial Exh. 1.
19a
United States v. Arthurwas a 18 U.S.C. § 656 (1976) 11 prosecu-
tion for the misapplication of bank funds. The Government estab-
lished that the defendant made gifts to state and political party
officials of West Virginia with the hope that the state would de-
posit funds in his bank. The district court, after instructing the
jury that the use of bank funds to commit bribery would violate
section 656, charged the jury that payments to state government
_ officials to influence them to deposit state funds in the defend-
~ant’s bank constituted bribery or attempted bribery. The Fourth
Circuit found fault with this latter portion of the instruction, con-
sidering it to have compelled the jury to find bribery absent proof
of criminal intent, and reversed. The court observed that not every
gift or political contribution constitutes bribery; it is only when
such gifts or contributions are made with criminal intent that
bribery occurs.
An analysis of the issues inherent in an 18 U.S.C. § 656 prosecu-
tion and the way in which the Fourth Circuit dealt with them in
Arthur plainly reveals the inapplicability of that decision to the
instant case. The threshold question in such a prosecution is
whether the conduct with which the defendant is charged amounts
to a misapplication of bank funds within the meaning of section
656. This, of course, is a federal question. The opinion in Arthur
does not disclose what the indictment alleged; it merely recites the
Government’s position on appeal: that the defendant used ‘‘bank
funds to pay unlawful bribes and to make illegal political contribu-
tions and that such use constituted a misapplication of those funds
in violation of 18 U.S.C § 656.’’ 544 F.2d at 733 (footnotes omit-
ted). It is not said whether the bribes were alleged to have been
11 18 U.S.C. § 656 provides in part:
Whoever, being an officer, director, agent or employee of, or connected
in any capacity with any Federal Reserve bank, member bank, national
bank or insured bank, . . embezzles, abstracts, purloins or willfully mis-
applies any of the moneys, funds or credits of such bank or any moneys,
funds, assets or securities intrusted to the custody or care of such bank, . .
. Shall be fined . . . or imprisoned . . . or both; . . ..
20a
made in violation of West Virginia law or a federal common law of
bribery. The source of the bribery law the defendant was to have
violated was important because the defendant was entitled to
adequate notice of precisely what was alleged to be a misapplica-
tion of bank funds. The defendant had constructive notice, at
least, of the West Virginia bribery statute, W.Va.Code § 61-5A-3
(Supp.1975), but whether he had notice of a federal common law
of bribery may have been open to question. 12
The Fourth Circuit’s opinion in Arthur contains so explicit
acknowledgement that what constitutes misapplication of bank
funds under 18 U.S.C. § 656 is a federal question; nor does it
mention whether the propriety of the bank officer’s conduct was to
be measured by the bribery law of West Virginia or the federal
common law. Discussion of these issues was avoided; the court
passed directly to the question whether the trial judge erred in
instructing the jury on how the payment of bank funds to the
officials might constitute bribery, and hence misapplication. It was
in this context that the court of appeals undertook what we con-
sider to be an abstract analysis of the criminal intent an accused
must possess to be convicted of the crime of bribery. In reaching
the conclusion that a bribery offense is not consummated unless
the questioned favor is made in anticipation of specific official
action, the court drew on judicial opinions in a wide variety of
cases involving different bribery statutes and arrived as a consensus
on the element of criminal intent. The West Virginia statute was
included in the canvass as the court considered it to be the most
relevant, though nat controlling, source of law, the conduct of the
defendant having occured in that state.
The court of appeals’ analysis does not indicate whether the
court was declaring the federal common law of bribery or inter-
preting a West Virginia statute. If the court was declaring the
12 As for the legality of political contributions, a matter not pertinent to
our discussion, notice was provided by 18 U.S.C. § 610 (1970) (current
version at 2 U.S.C. § 441b (1976), which makes unlawful certain national
bank expenditures for political purposes.
2la
federal common law of bribery, then its canvass of the case law was
appropriate. If, however, it was construing the West Virginia
bribery statute, what the bribery law of other states or the federal
common law may have proscribed seems to us to have beenir-
relevant, except, of course, to the extent that such law may have
been an appropriate aid to the court in construing the West Vir-
ginia statute. In either event, the: problem that faced the Fourth
Circuit—whether bribery, and, if so, what form of bribery, is pro-
scribed by 18 U.S.C. § 656—is unlike the one confronting us—
what constitutes bribery under Louisiana law.13 Consequently, we
fail to perceive the applicability of the ArtAurrationale in this case.
13. The racketeering statute involved in the instant case directs the feder-
al courts to look to state law to determine whether an act of racketeering,
such as bribery, has been committed.
“(R)acketeering activity” means (A) any act or threat involving mur-
der, kidnaping, gambling, arson, robbery, bribery, extortion, or dealing
in narcotic or other dangerous drugs, which is chargeable under State
law and punishable by imprisonment for more than one year; . . .
18 U.S.C.§1961(1)(1976
14 Appellants claim that United States v. Mandel, 591 F.2d 1347 (4th Cir.
1979), supports their argument that an Arthur instruction should be given
in an 18 U.S.C. § 1962(c) prosecution that charges bribery as an act of rack-
eteering. The defendants in Mandel were indicted on two counts: for rack-
eteering, under section 1962(c), like the appellants here; and for mail fraud,
18 U.S.C. § 1341 (1976). Bribery was alleged as an act of racketeering and
as part of the scheme to defraud. The Maryland bribery statute that the
defendants in Mandel were alleged to have violated as an act of racketeer-
ing contains wording similar to the Louisiana statute before this court. The
district judge, in charging the jury on what constituted bribery under
Maryland law, delivered an Arthur criminal intent instruction; because the
Maryland and Louisiana statutes are similar, the appellants submit, the
Arthur instructions should have been given in this case.
The propriety of utilizing Arthur language to express the requisite crimi-
nal intent under the Maryland statute apparently went unchallenged in the
Mandel trial court and, from our reading of the Fourth Circuit’s opinion,
was not questioned on appeal. That the appellate court, in assessing the
adequacy of the jury charge on the mail fraud count, found error in the trial
judge's omission of an Arthur instruction can be of no comfort to the appel-
lants here. The narrow issue was whether the trial judge, having incorpor-
ated an Arthur instruction in his charge on the racketeering count, should
have repeated it in his submission of the mail fraud count. The court of
appeals, one judge dissenting, felt that the overall charge might have con-
22a
Even if we were somehow to read the Arthur opinion as a con-
struction of the West Virginia bribery statute, the opinion cannot
be persuasive here because the West Virginia statute is quite unlike
the Louisiana act now before us. The West Virginia statute made
illegal both the payment and the acceptance of ‘‘(a)ny pecuniary
benefit as consideration for the recipient's official action as a
public servant or party official . . .’’ W.Va.Code § 61-5A-3
(Supp.1975) (emphasis added). The use of the word ‘‘considera-
tion’’ in the statute indicated to the court that the gift had to be
given in exchange for some official action. The Louisiana statute
does not employ the words ‘‘as consideration for’’ or their equiva-
lent to express the intended purpose of the gift. Employed instead
are the words ‘‘with the intent to influence .. . conduct.’’ The
inquiry under the Louisiana statute, then, is whether the gift is
made, not asa guid pro quofor specific action, but with the intent
to influence the conduct of the public servant in relation to his
position, employment, or duty. We think this latter inquiry is a
broader one than the inquiry presented by the West Virginia
statute and that Louisiana designates as bribery conduct that may
well be lawful in West Virginia. The A¢surdefinition of bribery,
having been fashioned in a context inapposite to the one presented
in this appeal, is not persuasive, and the district court was correct
in rejecting it.
fused the jury and, on this and other grounds, reversed the convictions on
both counts. The Fourth Circuit subsequently took the case en banc and
affirmed, by an evenly-divided court, in an unenlightening, two-sentence,
per curiam opinion. United States v. Mandel, 602 F.2d 653 (4th Cir. 1979)
(en banc) (per curiam). The Mandel panel opinion is consequently of no pre-
cendential value in the Fourth Circuit; nor do we consider it to have any
authorative value for our purposes. The parties there did not question and
the court did not discuss Arthur's precedential force, if any, when a federal
district court is anticipating the language the Maryland Supreme Court
would employ in expressing the criminal intent necessary for conviction
under the Maryland bribery statute. What the Fourth Circuit might say
were someone to contend that Arthur has no precedential value in such a
determination isan open question. The panel's discussion of Arthur in its
consideration of the mail fraud count is obviously inapposite. As the panel
implied, determining whether a scheme to defraud embraces a scheme to
commit birbery is a federal question, not a question of state law. 591 F.2d at
1359-63. Thus, in speaking to bribery as a facet of fraud, the jury instruc-
tion was not an expression of state law. In speaking of bribery as an act of
racketeering, however, the instruction had to conform to state law. See not
23a
The instruction proposed by the defense was also inappropraite
because of its biased and argumentative character; the same is tru
as to the instruction the trial judge initially contemplated giving
but eventually rejected. Both instructions would have bound the
jury to return verdicts of not guilty in the face of proven bribery. In
the instruction formally requested by the defendants, the final
sentence states: ‘‘If you find that the gifts were made, but that the
gifts were motivated by no more than customary business reasons.
... then you should find that bribery did not take place.’’ See note
9 supra. The jury would have been bound to treat as innocent any
gifts made for customary business reasons. This, in our view,
would be a rank misapplication of the Louisiana bribery law.
Customary business practice could embrace all sorts of extravagant
favors intended to influence important business decisions. The
type of favor, the manner in which it is given, and its timing are
things a businessman no doubt considers in courting his client; he
has an economic incentive to employ his resources in a manner that
will produce the greatest return. It is obvious that the same incen-
tive motivates businessmen in their commercial dealing with
governmental bodies; by the size and timing of their favors, how-
ever, they may transgress the bribery laws. In our view, the
instruction proposed by the defense would have foreclosed a find-
ing of such transgression.
~.
The instruction the court contemplated giving possesses the
same infirmity. This instruction was taken nearly verbatim from
the language of. the opinion in Arthur language that did not
purport to represent a model jury instruction on bribery. This
instruction would have advised the jury: ‘‘It does not follow how-
ever that the traditional business practice of promoting a favorable
business climate be entertaining and doing favors for potential
customers becomes bribery merely because the potential customer
isthe government. Such expenditures...are not intended asa quid
pro quo for the business.... (emphasis added). See note 10 supra.
Like the instruction initially requested by the defense, the court’s
tentative instruction would have prevented the jury from convict-
24a
ing the defendants of activity that the Louisiana legislature sought
to condemn. As we have observed, certain practices designed to
promote business in the private sector may very well be intended as
a quid pro quo for that business. Yet, in the public sector, the
same practices may run counter to a bribery statute. Even if
appellants’ theory is correct—that some guid pro quo must be
found to satisfy the requisite criminal intent for bribery—the
court’s tentative instruction misstated the law and was properly re-
moved from its final charge to the jury. In summary, defendants
wanted the jury to be bound to find that any favor falling within
the amorphous categories of ‘‘customary’’ or ‘‘traditional business
practice was not bribery, when it easily could have been.
While this court recognizes that all expenditures made by busi-
ness men to public servants are not motivated by the criminal
intent necessary for bribery, we cannot fault the district court for
failing to articulate the difference between licit and illicit business
expenditures in its charge to the jury. The judge gave defense
counsel the opportunity to formulate another instruction that ac-
curately reflected the difference, but none was forthcoming. 1st
Supp.Record, vol. 16, at 1486. The court then proceeded to in-
struct the jury on the element of specific intent—that defendants
must have made the gifts for the purpose of influencing the duties
of the public servants and must have done so voluntarily and in-
tentionally and not for any innocent reason—and on the theory of
the defense—that the requisite criminal intent was absent. Jd. at
1688-89. See Slip opinion 2288-2289, text at pp.
supra. Thus, the defendants were allowed to argue the distinction
between what they termed innocent goodwill expenditures and
actual bribery, which they did. 1st Supp. Record, vol. 16, at 1486,
1599. We cannot say that the court misled the jury on the law of
bribery or abused its discretion in declining to expound at length
on the theory of the defense. Consequently, we find no error in the
court’s charge on the Louisiana law.
25a
D. Reinstruction of the Jury on Conspiracy Count
(6] After the jury had entered its second day of deliberation, it
requested a copy of the court’s charge ‘‘concerning specifically
what constitutes conspiracy and a participant in a conspiracy.”’ 1st
Supp.Record, vol. 17, at 1717. The court refusted to provide the
jury with a copy of the relevant portion of its final charge, but in-
stead proposed that the jury be reinstructed on that portion. The
defense objected, requesting that the court reread the entire
charge. The court declined, but offered to instruct the jury on the
conspiracy count in full. The defense, though still insisting that
the entire charge be read, had no objection, and the jury was
thereafter instructed. The judge also reminded the jury to con-
sider, as a whole, the general instructions previously given and not
to single out any instruction. Jd. at 1720-21.
Appellants’ complaint here is that the charge on the conspiracy
count was heavily weighted in favor of the Government. They cite
United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970), in
support of their argument. The relevant language of Sutherland,
however, states:
In giving additional instructions to a jury—particularly in
response to inquiries from the jury—the court should be especi-
ally careful not to give an unbalanced charge. If the Judge
chooses to give any additional charge and elects not to repeat the
entire original charge, he should remind the jury of the burden
and quantum of proof and presumption of innocence or re-
mind them that all instructions must be considered as a whole
or take other appropriate steps to avoid any possibility of pre-
judice to the defendant.
25a !
Id. at 1157-58 (emphasis added). Where, as here, the full charge
to the jury is lengthy, the trial court can comply with the Suther-
Jand requirements by reinstructing the jury with the portion of
the charge responsive to the jury’s inquiry, by reminding the jury
of the prior instructions, and by advising it to consider the entire
charge, including the supplementary part, as a whole. ‘‘The sup-
plemental charge must be considered as an addition to the original
instruction rather than as an independent charge. As long as the
combined charges accurately cover the point of law at issue, no
reversible error exists.’’ United States v. Blevins, 555 F.2d 1236,
1239 (Sth Cir. 1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 733,
54 L.Ed.2d 761 (1978).
—
THIS
ISA
BLANK
PAGE.
26a
Il
[7] The Government has petitioned this court for a writ of
mandamus compelling the district court to order the forfeiture,
under 18 U.S.C. § 1963, of L’Hoste’s interest in R. J. L’Hoste &
Com. any, Inc. Forfeiture is one of the criminal penalties provided
by section 1963(a):
Whoever violates any provision of section 1962 of this chapter
shall be fined not more than $25,000 or imprisoned not more
than twenty years, or both, and shall forfeit to the United States
(1) any interest he has acquired or maintained in violation of
section 1962, and (2) any interest in, security of, claim against,
or property or contractual right of any kine affording a source of
influence over, any enterprise which he has established, operated,
controlled, conducted, or participated in the conduct of, in
violation of section 1962.
The Government's basic contention is that the language of section
1963(a) makes forfeiture mandatory rather than discretionary as
the district court viewed it. The district court acknowledged that
the language could be read as mandatory, but concluded that
other provisions, which it did not identify, in the statute gave it
the power to determine whether forfeiture should be granted. The
court was concerend that Mrs. R. J. L’Hoste’s community property
interest in the stock owned by her husband would be adversely
affected by a forfeiture and concluded that the authority expressly
granted it to set the terms and conditions of forfeiture implied the
authority to protect the rights of innocent persons, such as Mrs.
L’Hoste. In addition, the court felt that its power to sentence the
defendant L’Hoste was sufficient to give it full discretion with
regard to the forfeiture.
27a
The Government’s position is supported by the presence in the
statute of the word ‘‘shall’’ rather than language carrying faculta-
tive connotations. We must, however, go beyond the precise wor-
ing utilized to determine the intent of Congress, since ‘‘shall’’ is
sometimes construed as the equivalent of ‘‘may’’ when used in
statutes. Richbourg Motor Co. v. United States, 281 U.S. 528,
534, 50 S.Ct. 385, 387, 74 L.Ed. 1016 :1930).
This court has already stated the procedure to be employed in
determining congressional intent.
The most persuasive evidence of Congressional intent is the
wording of the statute. . . . Use of the word ‘‘shall’’
generally indicates a mandatory intent unless a convincing argu-
ment to the contrary is made. . . . Such an argument
may be waged when extrinsic aids such as purpose of the statute,
the statute as a whole, or the legislative history indicates an
intention that the statute be given a discretionary effect.
Sierra Club v. Train, 557 F.2d 485, 489 (Sth Cir. 1977) (citations
omitted). We must look first to the language Congress actually
utilized in the enactment to determine if apparently mandatory
wording is to be given discretionary effect. An analysis of the
language used supports a mandatory forfeiture. The criminal
penalties of fine and imprisonment are presented in the disjunc-
tive, allowing either fine orimprisonment orboth. On the other
hand, criminal forfeiture is mentioned in the conjunctive with the
other formats of penalties, leaving the implication that forfeiture is
required. In addition, the statute gives the sentencing court wide
latitude in determining the amount of the fine and term of the
sentence, subject, of course, to the limits established. In contrast,
nothing in subsection (a) concerning the act of forfeiture itself in-
dicates discretion resting with the trial court.
28a
Since the district court did not point to the other provisions of
section 1963 that seem to confer a discretion not to order for-
feiture, we must examine the remaining provisions of that section
to determine whether the district court is given such latitude. The
other provisions of section 1963, subsections (b) and (c), provide:
(b) In any action brought by the United States under this sec-
tion, the district courts of the United States shall have jurisdic-
tion to enter such restraining orders or prohibitions, or to take
such other actions, including, but not limited to, the acceptance
of satisfactory performance bonds, in connection with any prop-
erty or other interest subject to forfeiture under this section, as it
shall deem proper.
(c) Upon conviction of a person under this section, the court
shall authorize the Attorney General to seize all property or
other interest declared forfeited under this section upon such
terms and conditions as the court shall deem proper. If a prop-
erty right or other interest is not exercisable or transferable for
value by the United States, it shall expire, and shall not revert to
the convicted person. All provisions of law relating to the dis-
position of property, or the proceeds from the sale thereof, or
the remission or mitigation of forfeitures for violation of the
customes laws, and the compromise of claims and the award of
compensation to informers in respect of such forfeitures shall
apply to forfeitures incurred, or alleged to have been incurred,
under the provisions of this section, insofar as applicable and
not inconsistent with the provisions hereof. Such duties are as
imposed upon the collector of customs or any other person with
respect to the disposition of property under the customs laws
shall be performed under this chapter by the Attorney General.
The United States shall dispose of all such property as soon as
commercially feasible, making due provision for the rights of
innocent persons.
29a
Under subsection(b), the district court is given jurisdiction to
deal with the property involved in the forfeiture, including a broad
authorization ‘‘to take such other actions . . . inconnection
with any property or other interest subject to forfeiture under this
section, as it shall deem proper.’’ The type of action the court is
empowered to take, however, relates to the protection of the
Government's interest in the property. Because context is import-
ant in the quest for the meaning of a phrase, United States v.
Bishop, 412 U.S. 346, 356, 93 S.Ct. 2008, 2015, 36 L.Ed.2d 941
(1973), the examples of the court’s power set forth in the statute
give guidance as to the type of action that the court may take
under the apparently open-ended authorization clause. The stat-
ute specifically gives the district court the authority to enter re-
straining orders and prohibitions and to accept satisfactory perf-
formance bonds. These steps can be taken in aid of the courts
jurisdiction over the property subject to forfeiture, so that hose
holding forfeitable interests cannot dispose of them prior to for-
feiture and thus render the forfeiture illusory. This reading is sup-
ported by the House report on the Organized Crime Control Act
of 1970, Pub.L. No. 91—452, 84 Stat. 922 (codified in scattered
sections of U.S.C.), which states: ‘‘Subsection (b) provides for the
entering of restraining orders and prohibitions and the requiring
of performance bonds to prevent preconviction transfers of prop-
erty to defeat the purposes of the new chapter.’’ H.R.Rep. No.
91—1549, 91st Cong., 2d Sess. 57, reprinted in (1970) U.S.Code
Cong. & Admin.News pp. 4007, 4033. Therefore, we hold that
the discretion given the district court by the open-ended authori-
zation clause of subsection(b) relates to collateral measures dealing
with the preservation of the property subject to forfeiture rather
than the forfeiture itself.
In denying the forfeiture, the district court apparently relied on
the first sentence of subsection (c), which directs the district court
to authorize the Attorney General to seize the forfeited property
‘‘upon such terms and conditions as the court shall deem proper.”’
Again, the statute contains the word ‘‘shall’’ in instructing the
30a
district court to act, but gives it discretion to determine the ‘‘terms
and conditions’ of the forfeiture. This discretion apparently en-
compasses the determination of such administrative details as the
time and place that the property declared forfeited is to be seized
by the Attorney General.
The district court’s discretion, though, is not unfettered. Insight
into the scope of this discretion is provided by subsection (c),
which incorporates the relevant provisions of the customs laws
dealing with forfeitures and the disposition of forfeited property.
The customs laws allow the redemption of property subject to for-
feiture, the comptomise of Government claims against property,
and the remission or mitigation of penalties, including forfeiture.
19 U.S.C. §§ 1614, 1617, 1618 (1976). The discretion whether to
grant a remission or mitigation of a forfeiture, however, is given
the collector of customs and the Secretary of the Treasury. Under
these laws, courts have very little control over actions taken by
those charged with the power to grant remission and mitigation.
United States v. One 1970 Buick Riviera Bearing Serial No.
494870H810774,463 F.2d 1168, 1170-71 (Sth Cir.), cert. denied,
409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244 (1972). Various courts
have held that a district court is without jurisdiction to grant remis-
sion or mitigation of a forfeiture under 49 U.S.C. § 782 (1976),
which incorporates the forfeiture provisions of the customs laws.
See, e. g., United States v. One 1961 Cadillac, 337 F.2d 730, 733
(6th Cir. 1964); United States v. Andrade, 181 F.2d 42, 46 (9th
Cir. 1950); United States v. One 1952 Buick Special Riviera, 136
F.Supp. 253, 254 (D.Minn. 1955); United States v. One Olds-
mobile Sedan, 118 F.Supp. 450, 452 (E.D.La. 1954). But cf.
United States v. Huber, 603 F.2d 387, 397 (2d Cir. 1979) (though
not directly faced with issue, court assumes that district court has
jurisdiction and implies that it has discretion under § 1963(c) to
avoid unconstitutionally harsh applications of forfeiture).
[8] The duties that normally fall upon the collector of customs
ot any other person involved in the disposition of property under
3la
the customs laws are to be performed by the Attorney General
under section 1963(c). The Attorney General, rather than the
court would appear to have the power and discretion involving the
remission and mitigation of forfeiture. Thus, the district court's
ability to set the ‘‘terms and conditions’’ of the forfeiture are
limited, and any abuse of its discretion is subject to the review or
this court. See United States v. Denson, 603 F.2d 1143 (Sth Cir.
1979) (en banc). :
The meaning of the plain language of section 1963 is not chang-
ed by a study of its legislative history. Neither we nor L’Hoste have
been able to discover any congressional material that indicates
Congress intended a permissive rather than a mandatory for-
feiture. To the contrary, the House and Senate reports discuss the
forfeiture penalty in mandatory terms:
Section 1963 provides criminal penalties—including criminal
forfeitures—for violation of section 1962. The rnaximum penal-
ty authorized under subsection(a) is a $25,000 fine and im-
prisonment for 20 years. But, in addition, violations shall be
punsthed by forfeiture to the United States of all property and
interests, as broadly described, which are related to the violations.
H.R.Rep. No. 91—1549, 91st Cong., 2d Sess. 57(1970), reprinted
in(1970) U.S. Code Cong. & Admin.News at p. 4033 (emphasis
added).
Section 1963 provides criminal penalties for the violation of
section 1962, above. Subsection (a) provides the remedy of
criminal forfeiture. Forfeiture trials are to be governed by the
Fed.R.Crim.P. But see Fed.R.Crim.P. 54(a)(5). The danguage is
designed to accomplish a forfeiture of any ‘‘interests''’ of any
type in the enterprise acquired by the defendant or in which the
defendant has participated in violation of section 1962. For the
purposes of this section, 18 U.S.C. § 3563, insofar as it is appli-
able to forfeiture is no longer the law. . . . A $25,000
32a
S.Rep. No. 91—617,, 91st Cong., 1st Sess. 160 (1969) (emphasis
added). Forfeiture was viewed as an innovative measure that was
necessary to undermine the economic base of those convicted of
racketeering activity. See id. at 78-80.
Moreover, when Congress intended the penalty of forfeiture to
be non-mandatory in another section of the Organized Crime
Control Act of 1970, it clearly indicated this in the language of the
enactment. In prohibiting and establishing penalties for illegal
gambling activities, Congress also included a forfeiture provision,
although it used permissive instead of mandatory language: ‘‘Any
property, including money, used in violation of the provisions of
this section may be seized and forfeited to the United States. 18
U.S.C. § 1955(d) (1976) (emphasis added). Because the clear
wording of section 1963 has not been rebutted, but on the contrary
is supported by such extrinsic aids as a reading of the statute as a
whole, its purpose, and its legislative history, we must conclude
that it mandates the district court to order forfeiture when the
designed conditions precedent have been met.
The trial court's concern about the protection of innocent per-
sons, specifically Mrs. L’Hoste, does not require the erosion of the
directive nature of section 1963’s language. Subsection(c) makes
clear that the innocent parties’ rights in the forfeited property are
to be protected by providing that ‘‘[t]he United States shall dis-
pose of all such property as soon as commercially feasible, making
due provision for the rights of innocent persons.’’ Thus, Congress
plainly addressed the possible hardship that forfeiture could cuase
to those innocent parties holding an interest in the forfeited prop-
erty and gave responsibility to the United States, not the district
court, to alleviate the hardship. It would appear that Mrs.
L’Hoste’s remedy lies in petitioning the United States, through
the Attorney General, for her interest in the stock or one-half the
proceeds from the sale of her husband’s 633% shares.
33a
Finally, the mandatory forfeiture provision does not deprive a
district court of its right to sentence a defendant, as the trial court
here believed. The district court’s sentencing function only relates
to fines and imprisonment, and this function is in no way impaired
or impeded by the presence of the mandatory forfeiture provision.
Rather, the consequences of forfeiture in a given case may well be
taken into account by th court in fashioning its sentence.15
Because the district court erred in believeing that forfeiture was
non-mandatory, it had no occasion to establish any terms and con-
ditions for the forfeiture under section 1963(c). In light of our
analysis, we grant the Government’s petition for a writ of manda-
mus; the forfeiture shall be ordered. It is for the district court to set
whatever terms and conditions of the forfeiture may be appro-
priate.
L’ Hoste next contends, that, even if this court were to hold that
the forfeiture was mandatory under section 1963, it would not be
an appropriate remedy in the present case because the jury did not
decide whether forfeiture must be granted. Since the district court
considered the forfeiture provision permissive, it withheld the
ultimate issue from the jury while having the jury decide whether
the statutory conditions of section 1963(a) had been met. Under
that section, one who is convicted of racketeering activity must for-
feit to the United States (1) any interest acquired or maintained in
15 The forfeiture penalty incpororated in section 1963 differs from other
presently existing forfeiture provisions in federal statutes. Under other
statutes, the forfeiture proceeding is in rem against the property, since the
property being forfeited is itself considered the offender, and the forfeiture
is no part of the punishment for the criminal offense. By enacting section
1963, however, Congress revived the concept of forfeiture as a criminal
penalty against the individual, since the proceeding is in personam against
the defendant and the forfeiture is part of the punishment. SEE S.Rep. No.
91—617, 91st Cong., 1st Sess. 124-25 (1969). Even though the forfeiture is
part of the punishment, we see no reason why Congress cannot mandate a
specific penalty for a violation of a criminal statute.
34a
violation of section 1962 and (2) any interest affording a source of
influence over any enterprise with which that person has been in-
volved in violation of section 1962. Accordingly, immediately after
it had returned the guilty verdicts on the conspiracy and racketeer-
ing counts, the jury was asked to answer two questions concerning
the forfeiture issue:
1. Did Defendant, Robert J. L’Hoste maintain his interest in R.
J. L’Hoste & Company, Inc. in violation of Section 1962? . . .
2. Did his interest in R. J. L’Hoste & Company, Inc. afford a
source of influence over any enterprise which he has established,
operated, controlled, conducted or participated in the conduct
of, in violation of Section 1962?
Record, vol. 17, at 1759-60. The jury answered both questions in
the affirmative.
[9] L’Hoste argues that under Fed.R.crim.P. 31(e)16 the jury
needed to make the ultimate determination on the forfeiture ques-
tion. He contends that even though it might logically follow from
the issues determined by the jury that his interest in his company
must have been subject to for forfeiture, this conclusion by the
court would violate his right to trial by jury. When the questions
dealing with forfeiture were submitted to the jury, L’Hoste was
aware that it would make the actual determination of forfeiture,
yet made no objection. He has thus not preserved this point on
appeal.
Nor can we say that this point may be raised as plain error.
L’Hoste cites United States v. McClain, 545 F.2d 988 (Sth Cir.
1977), to support his position. We find McC/ain inapposite. In
McC/ain, this court reversed convictions under the National Stolen
16 Fed.R.Crim.P. 31(e) provides:
Criminal Forfeiture. If the indictment or the information alleges that an
interest or property is subject to criminal forfeiture, a special verdict shall
be returned as to the extent of the interest or property subject to for-
feiture, if any.
35a
Property Act, 18 U.S.C. §§ 2314, 2315 (1976), because the trial
court had incorrectly instructed the jury as to the applicable law
and thereby had removed essential factual determinations from
the jury. The issue in that case was whether pre-Columbian arti-
facts had been stolen from Mexico. The trial court had instructed
the jury that since 1897 Mexican law had made pre-Columbian
artifacts the property of Mexico; in actuality, however, Mexican law
had not made every pre-Columbian artifacts the property of Mexi-
co until 1972, and had contained numerous exceptions from 1897
until 1972. In response to the Government’s claim that the in-
struction was harmelss error because the allegedly stolen pre-
Columbian artifacts were found in the United States in May 1973,
nearly a year after all such artifacts had become the property of
Mexico, this court ruled that the Government’s contention asked
too much; the jury needed to make the essential factual deter-
minations of ‘‘recent exportation’ that would have supported the
convictions for possessing ‘‘stolen’’ property.
Unlike McC/ain, the present case does not involve a factual issue
that has been left undecided by the jury. Pursuant to rule 31(e),
the trial court submitted for jury determination the essential
factual issues involved in the forfeiture under section 1963(a). The
jury found that L’Hoste’s interest in R. J. L’Hoste & Company,
Inc. was subject to forfeiture. Thus, the jury met the requirements
of rule 31(e) by determining the extent of L’Hoste’s interest or
property subject to forfeiture, and all that remained for the district
court was to order forfeiture under section 1963. L’Hoste was not
deprived of his right to a jury determination of the factual issues
necessary for the court to order a forfeiture of his interest in his
companies.
{10} Finally, L’ Hoste asks this court to rule that the trial judge
has the discretion under the Federal Probation Act, 18 U.S.C.
§3651—3656 (1976), to suspend the forfeiture. Under section
36a
3651,17 a district court is given the power to suspend the impo-
sition or execution of a sentence. The clear language of the statute
allows the suspension of jail sentences and has been interpreted to
allow the suspension of fines. United States v. Beacon Piece Dye-
ing & Finishing Co., 455 F,2d 216, 217 (2d Cir. 1972). As to for-
feitures, however, the statute is silent. Again, neither we nor
L’Hoste have been able to find any support for the proposition
that section 3651 gives the district court the power to suspend the
imposition or execution of a forfeiture. Moreover, the rationale
that motivated Congress to reinstitute the forfeiture penalty indi-
cates that it was enacted to serve a purpose other than that of a
criminal sentence involving a fine or imprisonment. In considera-
tion of the ineffectiveness of prior penalties in dislodging organiz-
ed crime, Congress revived the penalty of criminal forfeiture to de-
prive those convited of racketeering activity of their economic base
so that they could not easily continue illegal activities. S.Rep. No.
91—617, 91st Cong., 1st Sess. at 79(1969); see United States v.
Rubin, 559 F.2d 975, 991 (Sth Cir. 1977). Because of the differ-
ence between forfeiture and punishment by fine or imprisonment,
and absent any indication that Congress intended to allow the
suspension of forfeiture under the Federal Probation Act, we can-
not hold that the district court had the power to suspend the for-
feiture.
17 18 U.S.C. § 3651 provides in part:
Upon entering a judgment of conviction of any offense not punishable by
death or life imprisonment, any court haivng jurisdiction to try offenses
against the United States when satisfied that the ends of justice and the
best interest of the public as well as the defendant will be served thereby,
may suspend the imposition or execution of sentence and place the defend-
ant on probation for such period and upon such terms and conditions as the
court deems best.
Probation may be granted whether the offense is punishable by fine or
imprisonment or both. If an offense is punishable by both fine and imprison-
ment, the court may impose a fine and place the defendant on probation as
to imprisonment. Probation may be limited to one or more counts or indict-
ments, but, in the absence of express limitation, shall extend to the entire
sentence and judgment.
37a
IV
For the reasons we have set forth, the appellants’ convictions in
the district court are affirmed. As for the matter of forfeiture, the
clerk shall issue a writ of mandamus commanding the district court
to order forfeiture in a manner not inconsistent with this opinion.
AFFIRMED IN PART; WRIT OF MANDAMUS TO ISSUE.
38a
APPENDIX ‘‘B’’
UNITED STATES v. L’HOSTE
UNITED STATES of America,
Plaintiff- Appellee,
Vv.
Robert J. L’HOSTE, R. J. L’Hoste & Company, Inc., Clarence
Eugene Rogers and Marvin Cochran, Defendants-Appellants.
In re UNITED STATES of America, Petitioner.
UNITED STATES OF America, Plaintiff-Appellant,
v.
Robert J. L’;HOSTE and R. J. L’Hoste & Company, Inc.,
Defendants-Appellees.
Nos. 78-5593, 79-1606 and 78-3457.
United States court of Appeals,
Fifth Circuit.
April 8, 1980.
Appeals from the United States District Court for the Eastern
District of Louisiana, Charles Schwartz, Jr., Judge.
On Petition for Writ of Mandamus to the United States District
Court for the Eastern District of Louisiana.
ON PETITION FOR REHEARING AND PETITION FOR
REHEARING EN BANC
39a
(Opinion January 10, 1980, 5 Cir., 1980, 609 F.2d 796).
Before TJOFLAT and VANCE, Circuit Judges, and ALL-
good. District Judge.
PER CURIAM:
The petition for Rehearing is DENIED and the Court having
been polled at the request of one of the members of the Court and
a majority of the Circuit Judges who are in regular active service
not having voted in favor of it, (Rule 35 Federal Rules of Appellate
Procedure; Local Fifth Circuit Rule 16) the Petition for Rehearing
En Banc is also DENIED.1
Before COLEMAN, Chief Judge, BROWN, AINSWORTH,
GODBOLD, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN,
VANCE, KRAVITCH, FRANK M. JOHNSON, JR., GARZA,
HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON,
RANDALL, TATE, SAM D. JOHNSON and THOMAS A.
CLARK, Circuit Judges.
TATE, Circuit Judge, with whom RUBIN, KRAVITCH and
POLITZ, Circuit Judges, join, dissenting from the Denial of a Re-
hearing for En Banc Consideration.
The panel decision decided, in this case of first impression, that
upon conviction for ‘‘racketeering,’’ 18 U.S.C. § 1962(c), the dis-
trict court is without the same discretion to suspend or condition
the forfeiture penalty provided for such conviction that it has with
* District Judge for the Northern District of Alabama, sitting by desig-
nation.
1 Judge Charles Clark did not participate in the consideration of the Peti-
tion for Rehearing En Banc.
40a
regard to the imprisonment (not more than twenty years) or fine
(not more than $25,000) penalties likewise statutorily provided for
the crim. 18 U.S.C. § 1963(a). The district court held to the con-
trary correctly in my present view. In view of the importance of the
holding and the extraordinarily harsh and unusual nature of the
forfeiture penalty, the issue merits en banc consideration. There-
fore, I respectfully dissent from our denial of the defendants’ ap-
plication for rehearing en banc.
Before I discuss the statutory provisions in particular, it is appro-
priate to note, in the context of American history, the unusual
nature of the present forfeiture provision. It hearkens back to pre-
Revolutionary English law, when by forfeiture those who fell into
Crown disfavor were subject to not only execution, imprisonment,
or fine, but also to loss of their entire estate, whether inherited or
however acquired. As this court stated in Unted States v. Rubin,
559 F.2d 975, 991 n.15 (Sth Cir. 1977):
Unlike in rem forfeiture proceedings against contraband or
articles put to unlawful use, § 1963 operates against the person
of the defendant and includes within the punishment for his
crime forfeiture of a portion of his estate. Such a provision,
while known to the common law of England and the colonies, is
foreign to the federal criminal law. The 91st Congress recogniz-
ed that, in passing: § 1963, that it was partially repealing a stat-
ute passed by the First Congress, which in its present form pro-
vides that: ‘‘No conviction or judgment shall work corruption of
blood or forfeiture of estate.’’ 18 U.S.C. § 3563. See United
States v. Mandel, 408 F.Supp. 679 (D.Md.1976); S.Rep. 91—
617, 91st Cong., 1st Sess. 79—80 (1969), (hereinafter S.Rep.);
116 Cong. Rec. 35205, 35208 (remarks of Rep. Mirka, Rep.
Ryan).
Having this in mind, and also the principle that criminal laws
and penalties are to be strictly construed, I am unable to agree with
the persuasively-reasoned majority opinion that a section 1963 for-
4la
feiture, a most harsh and unusual penalty, was legislatively intend-
ed to be mandatory upon conviction. In the absence of stronger
indication of Congressional intent to the contrary, the preferable
construction of section 1963 is not to deprive the district court of
any discretion whatsoever with regard to imposition of this penal-
ty, in conformity with the usual statutory discretion accorded it
with regard to the imprisonment and fine penalties provided by
the same statute.
18 U.S.C. § 1963(a) provides:
Whoever violates any provision of section 1962 of this chapter
shallbe fined not more that $25,000 or imprisoned not more
than twenty years, or both, and sha// forfeit to the United States
(1) any interest he has acquired or maintained in violation of
section 1962, and (2) any interest in, security of, claim against,
or property or contractual right of any kind affording a source of
influence over, any enterprise which he has established, operat-
ed, controlled, conducted, or participated in the conduct of, in
violation of section 1962. (Italics added).
On its face, this section of the statute seems to mandate at least
some fine or imprisonment (within statutory limits), as well as
mandating forfeiture, with no suspension permitted for the sen-
tence thus mandated. However, as the panel notes, the district
court is empowered to suspend any imprisonment or fine imposed
by virtue of 18 U.S.C. § 3651.1! In terms, this enactment permits
the suspension only of jail sentence, but it has been judicially in-
terpreted to allow the suspension also of fines. Because the statute
is silent as to forfeitures, however, the panel infers that a sentenc-
ing court is without authority to suspend this feature of a sentence,
even though the suspension provision is equally silent as to suspen-
sion of a fine. I would not read into section 1963 any legislative in-
tent to limit the usual power of the trial court, ‘‘when satisfied
1 18 U.S.C. § 3651 provides in part:
Upon entering a judgment of conviction of any offense not punishable by
death or life imprisonment, any court having jurisdiction to try offenses
against the United States when satisfied that the ends of justice and the
best interest of the public as well as the defendant will be served thereby,
may suspend the imposition or execution of sentence and place the defend-
ant on probation for such period and upon such terms and conditions as the
court deems best.
42a
that the ends of justice and the best interest of the public as well as
the defendant will be served thereby,’’ to ‘‘suspend the imposi-
tion or execution of sentence.’’ 18 U.S.C. §3651.
In the light of the usual discretion of the sentencing judge in the
imposition of any sentence, I would not infer any Congressional
intent, unless much more clearly stated, to deprive the judge of
discretion in the imposition of the forfeiture penalty. In virtually
all criminal penalties provided in Title 18, the word ‘‘shall’’ in the
penalty provision is used in pro forma drafting style— ‘‘Sha// be
fined . . . of imprisoned’’ is the terminology in virtually all
the statutory sentence provisions. The circumstance that this sen-
tencing formula word ‘‘shall’’ is used with regard to the forfeiture
provision of the present statute does not, it seems to me, by itself
indicate any Congressional intent to deny sentencing discretion to
the trial court with regard to forfeiture, any more than it does with
regard to imprisonment or fine.
I am re-enforced in this view (a) by a particular provision in the
racketeering statute, 18 U.S.C. §§ 1961 e¢ seqg., as well as (b) by
the sweep of the statutory crime so broadly defined as, without ju-
dicial supervision, to raise the spectre of selective enforcement of
the federal crime, in order to secure forfeitures for what in essence
are local state crimes, by members of the executive branch less
well-intentioned than those who brought the present prosecution.
[ cannot at the present believe it was the intention of Congress to
leave to a prosecutor alone the determination to achieve forfeiture
of an accused’s property by prosecuting him under the federal
racketeering statute for what, as statutorily defined with regard to
the present case, represents only two or more violations of local
bribery statutes or of somewhat esoterically applied federal crimes,
themselves punishable by imprisonment or fine, but not by for-
feiture.
First, having regard to the unusual nature of the forfeiture
penalty and to the strict construction required of penal statutes, |
Probation may be granted whether the offense is punishable by fine or
imprisonment or both. If an offense is punishable by both fine and imprison-
ment, the court may impose a fine and place the defendant on probation as
to imprisonment. Probation may be limited to one or more counts or indict-
ments, but, in the absence of express limitation, shall extend to the entire
sentence and judgment.
43a
believe, as did the trial judge, that 18 U.S.C. § 1963 itself evi-
dences an intention to afford the sentencing judge his usual sen-
tencing discretion with regard to forfeitures. Subsection (c) pro-
vides: ‘‘Upon conviction of a person under this section, the court
shall authorize the Attorney General to seize all property or other
interest declared forfeitedunder this section upon such terms and
conditions as the court shall deem proper. (Italics added.) Despite
the panel’s persuasive reasoning to the contrary, I, like the trial
judge, feel that this statutory language allows the sentencing judge
discretion to provide the terms and conditions of forfeiture within
the broad discretion thereby statutorily indicated.
Second, with regard to the ‘‘racketeering’’ crime denounced by
18 U.S.C. §§ 1961 e¢ seg. we ourselves noted in United States v.
Rubin, 559 F.2d at 991:
Besides the unprecedented nature of the forfeiture sanction,
the uncertain reach of ‘‘patterns of racketeering activity’’—the
gravamen of a § 1962 offense—requires interpretive caution in
this area. . . . While addressed to organized crime, the Act is
not limited in application to members of that undertaking.
In the present case, the defendants were convicted of a violation
of 18 U.S.C. § 1962(c), as being employees of or persons associated
with an enterprise affecting interstate commerce who directly or
indirectly participated in the conduct of the enterprise’s affairs
‘through a pattern of racketeering activity.’ In 18 U.S.C §
1961(5), a ‘‘pattern of racketeering activity’’ is defined as ‘‘at lcast
two acts of racketeering activity.’’ With regard to the conduct of
the present defendants, ‘‘racketeering activity’’ is statutorily de-
fined, 18 U.S.C. §1961(1), as (A) ‘‘any act . . . involving
bribery . . ., which is chargeable under State law and
punishable by imprisonment for more than one year’’ and (B)
‘any act which is indictable under any of the following provisions
of Title 18, United States Code:’’ mail fraud, 18 U.S.C. § 1341;
interstate travel and the use of interstate instrumentalities with in-
tent to commit bribery under state law, 18 U.S.C. § 1952.
i]
44a
The context facts show that, accepting the jury finding, R. J.
L’Hoste & Company, Inc., and the defendants, its employees and
officers, corruptly influenced a local governmental unit to give
them no-bid ‘‘emergency work’’ contracts and corruptly perform-
ed these contracts. The local bribery in violation of state law, and
the routine business use of the mails and of interstate travel in per-
forming the work (and affording a Las Vegas trip to a corrupted
official), apparently brings within the literal sweep of the federal
racketeering statute conduct which many might regard as exempli-
fying garden variety local political corruption rather than federally
cognizable interstate racketeering.
It is well to note, at this time, that no matter how isolated and
minor two ‘‘racketeering’’ incidents might be in the context of the
entire business conducted by the enterprise, the federal statute
literally construed is violated, and the defendant’s entire interest
in the enterprise is subject to forfeiture under the statute. I empha-
size this, because it is not readily conceivable to me that the Cong-
ress intended automatic forfeiture of an entire ownership in a busi-
ness enterprise, however and whenever acquired (whether by in-
heritance or by legitimate business operations), irrespective of the
magnitude of the ‘‘racketeering’’ conduct involved. 2
For all we know, the overwhelming bulk of the business of the
present contracting corporation was entirely legitimate in nature,
and the corrupt contracts only a miniscule portion of it. Yet,
according to the panel holding—and even if, instead of the ex-
tended conduct here shown, only two minor incidents of bribery
have been shown over ten years—and no matter how minor and
incidental may have been the accused’s personal participation in
the bribery of public officials by his employees,— the defendant
L’Hoste’s entire interest in the corporation is forfeited upon con-
viction of this crime. Private ownership of property is too funda-
2 Nor do at this time consider the possibility that forfeiture, unevenly
and disproportionately applied if mandated as automatically applicable,
raises Eighth Amendment issues.
45a
mental a value of our political and economic philosophy for me to
believe that Congress ever intended that a lifetime's legitimate
earnings or an inherited estate invested in a legitimate business
enterprise should, to the prejudice of wife and child as well as the
accused,3 be automatically forfeited upon a conviction resulting
from a federal prosecutor’s decision to prosecute local bribery
under the federal racketeering statute, or to utilize it instead of the
(rather esoterically applied) mail-fraud statute as a basis for federal
prosecution.
I must therefore respectfully dissent, with respect to whether
forfeiture is mandatory upon conviction, from the denial of the de-
fendant’s application for an en banc rehearing.
3 :As the trial court noted, the community property system of Louisiana
vested in the wife an interest in property acquired during the marriage.
Likewise, Louisiana's forced heirship provisions regard the property of an
individual, although fully subject to his administration, as property which
thuist descent to his children; it is, in a sense, the property of the family
rather than of the individual himself.
46a
APPENDIX ‘‘C’’
{Court’s Comments Upon Granting A New Trial]
THE COURT:
Gentlemen, I should like to address myself with complete
candor to my consideration of these matters, the deliberation that I
have given these matters pending before me, I think, has been the
most difficult that | have encountered during my judicial career.
The decision which I have reached is a decision which I hope will
foster justice for all, for the public, as well as for the Defendants. I
do believe that I have an obligation to the public, as well as to the
Defendants, to state why I have made the decisions that I have
made. I will attempt to do that at this time.
In my comments, I don’t mean to criticize anyone, except to at-
tempt, candidly, to disclose the reasons for the decision that I am
going to make.
First, let’s talk about the letter. On May 9th, I received a letter
from Mr. Cornelius Heusel, Director of the New Orleans Strike
Force, which I have ordered filed in the record in the case, suggest-
ing to the Court, in effect, that I should give the Defendant,
Robert L’ Hoste, a sentence substantially greater than that given by
other sections of court to other individuals who had pled guilty,
not to crimes to which Mr. L’Hoste and others were tried in this
case, but to other unrelated crimes, as far as I have been able to
tell, unrelated, except for the fact that they have been captured in
the public’s mind and the press and perhaps in the prosecutor’s
mind as part of what’s come to be known as the Jefferson Parish
Scandals.
I am sorry that the Government wrote me a letter. It did not
affect me, would not affect me. I would comment to the prose-
cutor that I think it’s a totally inappropriate thing fvx« the Govern-
ment to do in any case in this fashion.
First of all, it presupposes that a Judge is not aware of factors
47a
stated in the letter which is a naive approach, that it presupposes
that Judge is not aware of his obligations to the public. That, I
think, is naive, at least, with regard to this Judge.
Further, it invites the Court to sentence this Defendant for
something he did not do, as opposed to something for which he
stood convicted.
It invites the Court to sentence him because he did not choose to
cooperate with the Government and give testimony along lines
that the Government would have thought appropriate to further
its investigation.
For a Court to accept such an invitation, in my view, would be
tantamount to erasing the significant line between the Judiciary
and the Executive Branch of the Government, which line must be
maintained if the Judiciary is to maintain its philosophical role as
protector of individuals from Governmental tyranny.
A great deal has been made in the public’s mind about corrup-
tion, that this Court believes, quite strongly, philosophical factors
are equally as important, perhaps a great deal more important, one
of those is protection of the individuals from thetyranny of the
Government. When our Constitution was enacted, citizens were
more concerned about Governmental tyranny than they were any-
thing else. For that reason, among others, federal judges were
given life tenure, so that they might have the independence not to
depend upon their salary from the Government, but to exercise
that independence. I feel that it’s very important to maintain the
separation. If the courts were to become handmaidens of prose-
cutors, if the courts were to impose sentences in order to further
investigations, in my view, the integrity of the courts would be
lost, not only in the eyes of judges who accepted such invitations,
but also in the eyes of the public and justifiably so. I realize that
that has happened in some instances around the country. I can
assure you that I hope it will never happen to this Judge.
48a
So, I do not intend, here, to accept the invitation under any cir-
cumstances to sentence this Defendant for something he did not
do if the Defendant chooses to exercise his constitutional right to
require that the Government prove his guilt behond a reasonable
doubt, he’s entitled to do so and should not be penalized for exer-
cising that choice. Enough for the letter, at least, standing by
itself.
I now would like to turn to the substantive grounds for the
motion for a new trial.
First, let me state that I fully recognize that hindsight is twenty-
twenty. I recognize that 1 may be open to the criticism for not
having made certain decisions earlier. However, when asked to
make the decisions at earlier time, the Court was confronted with
isolated instances. With the benefit of hindsight, I am able, I
think, to see more clearly the overall effect of certain things which |
will describe, which, in my view, have brought in a serious ques-
tion of the quality of justice, that has prevailed in this case.
The original indictment against the Defendants was so compli-
cated, so verbose, so impossible of effective prosecution, that even
the prosecutors recognized this fact and indicated to the Court
when the Court was originally confronted with motions to dismiss,
that it would come with a superseding indictment. Unfortunately,
the superseding indictment did not arrive until just about a week
before the trial and although valiant effort was made by all, be-
cause they wanted to maintain the trial setting, incuding the
Defendants, the Government tried, insofar as possible, the Court
told the Defendants to do the best they could, that the court
would be in position to protect therm if their rights were prejudic-
ed. The fact is that no one really had the time to study and exam-
ine the indictment on which the trial was conducted and I include
myself in that category. Indeed, it was not until the Court was
laboring through almost all night sessions to try to confect a jury
charge for such an indictment, the superseding indictment, that it
49a
became apparent to the Court that one of the reasons it was so
complex was that it was the Second Count, the so-called Racketeer-
ing Count had charged three separate crimes, a basis which allow-
ed the dismissal right to the Defendants if they had known this be-
fore the beginning of trial. At that time, since they had not moved
for dismissal, the Court was obligated to continue, hoping that it
could do as good a job as possible to explain the indjctment. The
result was a jury charge which, although the Court labored with it
greatly, it gave the jurors each a copy in writing, was overly com-
plex, difficult to understand and perhaps, more significantly than
anything else, difficult to defend against.
Let us consider the indictment, the two counts, first the conspir-
acy count which charged a plethora of various crimes, then these
smae crimes for the most part, duplicated in the racketeering
count, which enabled the Government to admit into evidence all
sorts of activities and puts the Court and others, at this time, in a
position of knowing not really what the jury chose to believe and
what the jury chose not to believe.
Now, let me state candidly that I think there was evidence on
which the jury might technically have found the elements as the
Court instructed them with regard to each of the two counts and ‘I
want to say, too, that this was, I think, one of the most conscien-
tious and able juries that I ever had the privilege of working with.
It deliberated concientiously. So, 1 don’t mean, in any way, to criti
cize the jury’s results. The fact is, that I think we, in the system of
justice, gave them an impossible task.
I think, therefore, that although technically the Court might say
there was evidence to support a conviction, I just don’t believe that
our system of justice is such that the Court of Appeals, who un-
doubtedly will be confronted with this case, the Defendant or, this
Court, should be given the task to try to speculate as to which of
the various goodies which the jury as presented they chose to select
in order to support a conviction.
50a
If these Defendants are to be convicted, then I see no reason why
a simple indictment, divorced from the emotions and passions
connected with the so-called scandals, a simple indictment charg-
ing them with crimes that they can defend against, which jurors
and other courts and others can deal with effectively, cannot be
confected and I believe if that happens, the quality of justice for
all, public as well as the Defendants, will be enhanced greatly.
One of the other aspects of the indictment which made it very
difficult was the fact that the Government sought to introduce evi-
dence of other illegal acts, alleged illegal activities, such as the
matters pertaining to the sundry streets project, although this was
not an emergency work project and although mentioned in one of
the overt acts of the indictment, the count of the indictment deal-
ing with the conspiracy, it did not, technically, fall within the
emergency work jobs which was the thrust of the conspiracy count.
The Court was confronted with an objection during opening state-
ment. At the time of Bench argument, the Court felt that the
objection was a highly technical one, I subsequently believe that
there was merit to the objection and that although in the overall
picture of the evidence, the sundry street project may be said not
to be that prejudicial, not to have affected the outcome, perhaps
when cumulated with the vast amount of other broad general bad-
type activity, I cannot say that it didn’t prejudice the rights of the
Defendants to a fair trial. this, again, is a trial defect brought
about by the indictment, by the overly broad indictment and by
the use of a racketeering statute. Though is is a prosecutor’s
decision, it certainly appears to the Court that the use of the Or-
ganized Crime Control Racketeering Statute was a totally inappro-
priate use of such statute in this case.
What has been the effect of all these actions? Well, one other
thing before I get to it, the principal witnesses against the Defend-
ants were persons who had received immunity from the particular
crime charged in this case. Some of them, in this Court’s opinion,
exercised their conduct in such fashion as to grant serious doubt to
5la
any credibility, to bring serious doubt as to whether they were not
giving testimony in exchange for what they felt prosecutors wished
to hear and I don’t mean to imply misconduct on the part of prose-
cutors or, I don’t mena, in any way, to imply that the prosecutors
fostered this. But, the character of the individuals who testified,
many of whom will forever remain totally unpunished for any
allegedly illegal activity, much of which was much grosser than
these Defendants are even charged with, has to cause the Court to
be concerned about the system, to be concerned about a system
where increasingly we find that people are indicted and tried on
the basis of the testimony from those who have immunity, where
so often in our criminal justice system the persons most culpable of
traditional criminal conduct go unpunished because of immunity.
I recognize fully the philosophical basis for the use of these
techniques by prosecutors. I simply suggest, as the courts have
recognized, that such testimony has to be carefull examined.
So, what is the effect of all these things? Well, we have a situa-
tion where these Defendants and particularly the Defendant
Robert J. L’Hoste, Jr., for whom the Government is still demand-
ing the garrett, the rack and perhaps, crucifixion, has been subject-
ed to microscopic examination in the present and in the eyes of the
public and the court has been confronted with an unparalleled dis-
play of, on the one hand, empathy for Mr. L’ Hoste and his Code-
fendants and on the other hand, vituperative cries of revenge. I
have had many telephone calls to my office, many anonymous,
suggesting the absolute obligation of the Court to impose the max-
imum sentence on these individuals. Sentencing also is scheduled
for today and I’ve had many other individuals praising a lifetime
of good works, many unsung, as these individuals state. The pub-
lic patience is high, they, like the prosecutors, feel that great pub-
lic harm has been done by public corruption which justify the tech-
niques which I’ve just described.
52a
On the other hand, the Court must balance the individuals
whose convictions have been attained in the fashion which I’ve de-
scribed.
In my view, after considering all of these factors, the best inter-
est of justice for all would be solved or, served by the Court grant-
ing the motion for a new trial or, motions for a new trial by the
Defendant Robert J. L’Hoste, R. J. L’Hoste and Company, Incorp-
orated, Clarence Eugene Rogers, Marvin Cleo Cochran and George
C.eckert Enterprises, Incorporated, so as to give all with the bene-
fit of what we have learned, hopefully, the prosecutors as well as
the defense, an opportunity to demonstrate the system of justice at
work as it should.
In view of prevailing authorities, I rust also grant that portion
of the motion to reallot the case to another section of the court, the
Court’s rule that the Judge should not retry a criminal case a
second time.
I tried to be as candid as I can with regard to the factors which
have motivated my decision. I think the Defendants and the
public are entitled to be aware.
I express no opinions by saying guilt or, innocence of any
parties. My actions have been motiviated because of deep concern
about the philosophical aspects of our system of justice and I hope
and pray that it’s been a wise decision for me.
53a
APPENDIX ‘‘D’’
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA * CRIMINAL ACTION
versus * NO. 77-587
(1) ROBERT J. L’HOSTE, * SECTION: ‘‘A’’
(2) R. J. LTHOSTE & COMPANY, INC.
(3) CLARENCE EUGENE ROGERS VIOLATION:
(4) MARVIN COCHRAN, 18 USC §371;
. 1962(c); and 2
TWO-COUNT SUPERSEDING INDICTMENT FOR (1) A
CONSPIRACY TO DEFRAUD, AND TO COMMIT OTHER
CRIMINAL OFFENSES AGAINST THE UNITED STATES,
INCLUDING THE USE OF THE MAILS IN FURTHERANCE
OF SCHEME TO DEFRAUD, AND USE OF THE MAILS AND
OTHER INTERSTATE FACILITIES FOR UNLAWFUL ACTI-
VITIES, TO PARTICIPATE, THROUGH A PATTERN OF
RACKETEERING ACTIVITY, IN THE AFFAIRS OF ENTER-
PRISES, THE ACTIVITIES OF WHICH AFFECT INTERSTATE
COMMERCE; AND, (2) A SUBSTANTIVE VIOLATION FOR
SUCH PARTICIPATION IN THE AFFAIRS OF THOSE
ENTERPRISES
54a
The Grand Jury Charges:
COUNT 1
The Conspiracy Count
(18 U.S. Code, Section 371)
A. At all times material to this indictment:
(1) Defendant Robert J. L’Hoste was the President, a director
and principal shareholder of defendant R. J. L’ Hoste & Company,
Inc., owning 633 % shares of a total of 1,000.
(2) Defendant R. J. L’Hoste & Company, Inc. was a Louisiana
corporation.domiciled in Jefferson Parish, Louisiana.
(3) Defendant Clarence Eugene Rogers was a civil engineer em-
ployed by defendant R. J. L’Hoste & Company, Inc. and after
December 1973 became vice-president of defendant R. J. L’Hoste
& Company, Inc.
(4) Defendant Marvin Cochran was employed by the defendant
R. J. L’Hoste & Company, Inc. as construction foreman and super-
intendent.
(5) Defendant George C. Eckert Enterprises, Inc. was a Louisi-
ana corporation wholly owned by George C. Eckert.
(6) Ray L. Condon, Jr. was the Director of the Department of
Drainage and Sewerage for the Parish of Jefferson. In that official
position, he was vested with the authority and responsibility for
the planning, design, construction, maintainence, repair, opera-
ction and administration of the drainage and sanitary sewer system
of the parish.
55a
(7) Walter G. Frey was the chief engineer for the Department of
Drainage and Sewerage for the Parish of Jefferson.
(8) Frederick J. Hoth, Sr. was employed by the firm of Albert
Switzer & Associates, Inc., the consulting engineers for the De-
partment of Drainage and Sewerage. He served as the firm’s liason
representative with Condon and Frey and other public officials in
Jefferson Parish.
(9) Stallion Construction Company, Inc. was a Louisiana
corporation owned by Condon, Frey and Hoth.
(10) New Crescent Enterprises, Inc. was a Louisiana corporation
owned by Condon and Hoth.
(11) PIR, Inc. was a Louisiana corporation in which Condon,
Frey and Hoth owned a total of 50% of the total outstanding
shares.
(12) Crescent Rentals was a partnership owned by Condon and
Hoth. |
B. The Conspiracy
From on or about April 23, 1970 through December 1, 1977, in
the Eastern District of Louisiana, and elsewhere, the five defend-
~ ants, (1) Robert J. L’Hoste, (2) R. J. L’Hoste & Company, Inc., (3)
Clarence Eugene Rogers, (4) Marvin Cochran, and (5) George C.
Eckert Enterprises, Inc., did willfully, knowingly and unlawfully
combine, conspire and agree with each other and with other co-
conspirators some known and others unknown to the Grand Jury,
to defraud the United States and to commit other criminal offenses
against the United States.
(1) They conspired to defraud the United States, through the
Secretary of the Treasury, Department of the Treasury, by intefer-
56a
ing with, impeding, obstructing and defeating the lawful func-
tions, operations and purposes of the Secretary, and the Depart-
ment, in the administration of the State and Local Fiscal Assistance
Act of 1972, sometime referred to as the Federal Revenue Sharing
Act (31 U.S.Code, Sections 1221-1264), and the regulations
adopted and promulgated (31 CFR, Part 51), and depriving the
United States, through the Secretary, and the Department of
Treasury, of (a) the right to have the federal revenue sharing pro-
gram administered, conducted and accomplished honestly, fairly
and properly, in compliance with all applicable laws and regula-
tions, and free from dishonesty, favoritism, discrimination, deceit,
bribery, kickbacks, conflicts of interest and other corrupt practices,
and (b) the right to have the federal revenue sharing funds receiv-
ed by Jefferson Parish used only for actual, necessary, and duly
authorized priority expenditures, in violation of 18 U.S. Code,
Section 371.
(2) They conspired to defraud the Parish of Jefferson of public
funds, by using and causing the United States mails to be used in
furtherance of, and for the purpose of executing, and attempting
to execute, a scheme and artifice to defraud, and to obtain money
and property by means of false and fraudulent pretenses, prepre-
sentations and promises, in violation of 18 U.S. Code, Section
1341.
(3) They conspired to travel and cause others to travel in inter-
state commerce, and to use and cause others to use telephone, mail
and transportation facilities in interstate commerce between the
State of Louisiana and other states, with the intent to promote,
manage, establish, carry on and facilitate the promotion, manage-
ment, establishment and carrying on of an unlawful activity, as de-
fined in 18 U.S. Code, Section 1952(b), in violation of the laws of
the State of Louisiana relating to bribery, as defined in Article
_ 118(1) of the Louisiana Criminal Code (La. R.S. 14:118(1)), of
public employees holding positions of public authority, including
Ray L. Condon, Jr. and Walter G. Frey, in furtherance of their
57a
scheme and artifice to defraud, in violation of 18 U.S. Code, Sec-
tion 1952(a) and (b). And,
(4) They also conspired to be employed, associated with and to
participate in the affairs of enterprises, as defined in 18 U.S. Code,
Section 1961(4), through a pattern of racketeering activity, as de-
fined in 18 U.S. Code, Section 1961(5), the activities of which af-
fect interstate commerce, as defined in 18 U.S.Code, Section 10,
and are prohibited by 18 U.S. Code, Section 1962(c), which un-
lawful acts involve, among others, many acts of public bribery, of
public officials which are chargeable under LSA-RS 118(1) of the
Louisiana Criminal Code, as defined in 18 U.S. Code, Section
1961(1)(A); acts relating to mail fraud, which are indictable under
18 U.S. Code, Section 1341; and, multiple acts relating to the use
of interstate travel and interstate facilities, including the mail, to
promote unlawful activity, which are chargeable under 18 U.S.
Code, Section 1952, all in violation of 18 U.S. Code, Section
1962(c).
(C) Ways and Means to Accomplish the Conspiracy
(1) Defendant R. J. L’Hoste & Company, Inc., a constracting
company doing underground construction work in Jefferson Par-
ish, Louisiana, would obtain and keep public works contracts per-
taining to the sanitary sewer system of Jefferson Parish with the aid
and assistance of Condon, as Director of the Jefferson Department
of Drainage and Sewerage; Frey, as chief enginerr of the Jefferson
Department of Drainage and Sewerage; Hoth, as inspector for
Albert J. Switzer & Associates, Inc., the consulting engineer for
the Jefferson Parish Council; and others, and that in return the
defendants would cause to be given to Condon, Frey and Hoth,
and others, money and other considerations in the form of bribes
through various means, as more fully described below.
(2) It was part of the conspiracy that Condon, as Director of the
Department of Drainage and Sewerage of Jefferson Parish, would
58a
recommend to the Jefferson Parish Council, as governing authority
for the Parish, that defendant R. J .L’Hoste & Company, Inc. be
granted lucrative cost-plus contracts for repairs to the sanitary
sewer system on a so-called ‘‘emergency’’ basis, thus avoiding the
necessity of cometitive bidding in compliance with the laws of the
State of Louisiana. In addition, defendant Robert J. L’ Hoste was to
make necessary arrangements to assure Jefferson Parish Council
approval for the ‘‘emergency’’ contracts. Additional fraudulent
revenues were generated for defendant R. J. L’Hoste & Company,
Inc., by officers and employees of defendant R. J. L’Hoste & Com-
pany, Inc. who would intentionally delay, obstruct, and impede
the progress of the ‘‘emergency work’’ and charge to the Parish of
Jefferson on a cost-plus basis; equipment at inflated costs; equip-
ment not needed or inoperable; and unnecessary labor.
(3) It was further part of the conspiracy that in return for the aid
and ‘assistance of Condon, Fre and Hoth, the defendants would
funnel money to Condon, Frey and Hoth by using companies,
such as defendant George C. Eckert Enterprises, Inc., Stallion
Construction Company, Inc., Crescent Rentals, and New Crescent
Enterprises, Inc., for so-called ‘‘equipment rentals’’ to be used in
the so-called ‘‘emergency works’’ projects, although the equip-
ment was not needed, and was provided at inflated costs to be paid
from Parish revenues and/or federal revenue sharing funds as is
more specifically identified in overt acts 14-22 below.
(4) It was further part of the conspiracy that defendant R. J.
L’Hoste and Company, Inc., through defendants Robert J.
L’Hoste and Clarence Eugene Rogers would agree to use PIR, Inc.
on the so-called ‘‘emergency work’’ projects, as a means of obtain-
ing funds for Condon, Frey and Hoth, which payments of funds
constituted violations of the laws of the State of Louisiana relating
to public bribery.
(5) It was further part of the conspiracy that Condon, Frey and
Hoth would aid and assist defendant R. J. L’Hoste & Company,
59a
Inc., by providing to defendant Robert J. L’Hoste advance in-
formation concerning a contract known as the Sundry Streets Pro-
ject of Jefferson Parish, thereby allowing defendant R. J. L’Hoste
& Company, Inc. to submit a bid price lower than the bid price of
its competitors. In return, defendant R. J. L’Hoste & Company,
Inc., acting through its president, defendant Robert J. L’ Hoste,
defendants Clarence Eugene Rogers and Marvin Cochran, would
and did kickback in the form of a bribe to Condon, Frey and Hoth
$24,000 which was not due them.
(6) It was further part of the conspiracy that when a sanitary
sewer lift station, with pumps, purchased from outside the State of
Louisiana, was not needed on the Sundry Streets Project that R. J.
L’ Hoste & Company, Inc., acting through its officers and employ-
ees, would give this valuable equipment which was owned by the
Parish of jefferson to Condon, Frey and Hoth. this lift station
would then be used by Condon, Frey and Hoth on a private con-
tract at a site located on Peters Road in Harvey, Louisiana. De-
fendant R. J. L’Hoste & Company, Inc., would provide to Con-
don, Frey and Hoth a complimentary bid on this private job know-
ing at the time that defendant R. J. L’Hoste & Company, Inc. was
not to obtain the job.
(7) It was further part of the conspiracy that the defendant R. J.
L’Hoste & Company, Inc., acting through defendants Robert J.
L’Hoste and Clarence Eugene Rogers and others, would addition-
ally, in return for the aid and assistance of Condon, Frey and
Hoth, and others, make bribe payments in the form of:
(a) Vacation and hunting trips outside the State of Louisiana for
Condon and Hoth;
(b) Provide labor and materials to help construct Condon’s
residence and to perforr.: other work outside the State of Louisiana
for the benefit of Condon;
(c) Purchase two parcels of land in the name of defendant Rob-
ert J. L’Hoste and execute a counter-letter in favor of Condon and
60a
Hoth giving them free of charge a one-half interest in the
property; and, -
(d) Weekly cash payments, to a Parish inspector whose job in-
cluded, among other things, inspecting and verifying the progress
of work and the use of labor and equipment on public works jobs
involving the sanitary sewer system of Jefferson Parish.
(8) It was further part of the conspiracy that for the purpose of
executing the aforesaid scheme and artifice to defraud, the defend-
ants did cause to be placed in an authorized depository for mail
matter to be delivered by the Postal Service of the United States,
certain material, including but not limited to, the following:
(a) Jefferson Parish Council Resolutions more fully identified in
Overt Acts 4-13 below.
(b) Invoices of R. J. Marchand — Company, Inc., more fully
described in Overt Act Number 31 below.
(c) Corresponsdence, invoices and checks mailed in connection
with the Sundry Streets Project, as is more fully described in Overt
Acts 28 and 29.
D. Overt Acts in Furtherance of the Conspiracy
The Grand Jury charges that the five defendants and their co-
conspirators committed the following overt acts, among others, in
furtherance of their conspiracy and to accomplish the objects and
purposes thereof:
(1) From time to time during the period from on or about April
23, 1970, to on or about March 31, 1972, the defendant Robert J.
L’ Hoste, as President of defendant R. J. L’Hoste & Company, Inc.,
contrived and discussed with Frederick J. Hoth, Sr., a scheme to
procure, on a selective, preferential and favorable basis, from the
Jefferson Parish Council, through the Department of Drainage
and Sewerage, lucrative public works projects involving so-called
‘‘emergency’’ repairs to parts of the sanitary sewer system on a
cost-plus or ‘‘time and material’’ basis.
6la
(2) Defendant Robert J. L’Hoste, as President of defendant R.
J. L’Hoste & Company, Inc., proposed and agreed to make pay-
ments to Ray L. Condon, Jr., as Director, and Walter G. Frey, as
Chief Engineer, of the Department of Drainage and Sewerage,
and Frederick J. Hoth, Sr., of money, purportedly for ‘‘equipment
rentals’’.
(3) Defendant Robert J. L’Hoste further proposed and agreed
that these payments would be made by defendant R. J. L’Hoste &
Company, Inc. to Condon, Frey and Hoth, through defendant
George C. Eckert Enterprises, Inc., New Crescent Enterprises, Inc.,
Stallion Construction Company, Inc. PIR Corporation, and others,
who would be used as conduits to disguise, conceal and coverup
the financial interests of Condon, Frey and Hoth in these trans-
actions and activities, and the payments of money to them by
defendant R. J. L’Hoste & Company, Inc.
(4-13) That on or about the dates set forth below, the defend-
ants, Robert J. L’Hoste and R. J. L’Hoste & Company, Inc., in col-
lusin with Ray L. Condon, Jr., as Director of the Department of
Drainage and Sewerage, and Walter G. Frey, as Chief Engineer for
the Department, and others, caused the Jefferson Parish Coun-
cil to adopt Resolutions, the numbers of which are set forth below,
declaring that there were ‘‘emergency’’ conditions involving prob-
lems or damages to the Parish sewer system at sepcific locations;
and, the repair work project was awarded to defendant R. J.
L’Hoste & Company, Inc., without a description of, or plans and
specifications for the proposed work, and without advertisement or
notice to other contractors, and without competitive bids, on an
‘‘emergency’’ cost-plus basis without any estimate, budget or limit
as to the cost of, or the time to complete, the proposed work.
DATE PARISH COUNCIL LOCATION OF PROJECT
RESOLUTION
(4) April 23, 1970 16157 Carrollton Avenue
(5) April 22, 1971 | 18102 Rosewood & Stroelitz
Streets (East Bank )
62a
(6) February 17,1972 19596
(7) June 1, 1972 20140
(8) September 28, 1972 20657
(9) May 10, 1973 21861
(10) June 21, 1973 22138
(11) September 3, 1973 22485
(12) February 7, 1974 23244
(13) January 15,1976 26985
Bore St. and Ridgelake
Drive (East Bank)
48th St. and Ridgelake
Drive to Causeway Blvd.
(East Bank)
Ames Blvd. between
August Lane and Acres
Road (West Bank)
Bellevue Subdivision
on Labarre Road between
Southern Railroad
tracks and Airline
Highway (East Bank)
Deerfield and Emerson
Streets (West Bank)
400 Block of Bellemeade
(West Bank)
North Service Road and
the West Bank Expressway
from Silverlilly Lane to
Cohen Street (West Bank)
Green Briar-Golden
Heights Subdivision
System (West Bank)
(14-22) Between the dates set forth below, the defendants,
Robert J. L’Hoste, R. J. L’Hoste & Company, Inc., and Clarence
Eugene Rogers, caused to be submitted to the Jefferson Parish
Finance Department certificates for the actual cost of labor, mat-
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
63a
erials and equipment allegedly used in the sewer repair work alleg-
edly done by defendant R. J. L’Hoste & Company, Inc., on the
projects set forth in (4-13) above, plus 15 % for overhead and
profit; and, defendant R. J. L’Hoste & Company, Inc. received
from the Jefferson Parish Finance Department payment in
amounts set forth below which included sums paid out of federal
revenue sharing funds.
NUMBER TOTAL REQUIRED AMOUNT AND
OF FOR PROJECT PERCENTAGE OF
CERTI- FEDERAL REVENUE
DATES FICATES SHARING FUNDS
June 1, 1971 to 12 $633,240.48 $ 82,231.60
January 17, 1972 (12,98 %)
March 22, 1972 to 12 $575, 369,02 $523,792.31
September 7, 1972 (91.03 %)
June 20, 1972 to 12 $397,246.87 $211,790.17
February 1, 1973 (53.3 %)
November 9, 1972 to 12 $367,961.87 $116,872.32
July 12, 1973 (31.76 %)
July 11, 1973 to 19 $661,038.04 $661,038.04
May 28, 1974 (100 %)
July 11, 1973, to 12 $303,455.22 $303 455.22
May 28, 1974 (100 %)
October 24, 1973 to 8 $286,621.25 $286,621.25
May 28, 1974 (100 %)
March 12, 1974 to 19 $769, 616.02 $747,737.35
july 2, 1975 (97.16 %)
February 4, 1976 21 $840,281.36 None
64a
(23) According to the records of defendant R. J. L’Hoste &
Company, Inc., the company realized from these ‘‘emergency
cost-plus projects at least $892,501.19 profit.
(24) During the period from April 12, 1972
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