Appendix — Dozier v. United States

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APPENDIX A

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GILBERT L. Dozier,

Defendant-Appellant.

No. 80-3927.

United States Court Of Appeals,

Fifth Circuit.

April 8, 1982.

Appeal from the United States District Court for the Middle

District of Louisi

Before Wispvom, Sam D. JoHNSON and WILLIAMs, Circuit

Judges.

2a

JeRRE S. WILLIAMs, Circuit Judge.

Gilbert L. Dozier was elected Commissioner of Agriculture

of the State of Louisiana on December 13, 1975, and took office

on May 10 of the following year. His bid for reelection in

December, 1979, conducted in the midst of a publicized federal

investigation of his activities as Commissioner, was unsuccess-

ful. In January, 1980, a federal grand jury returned a five-

count indictment against Dozier.

Count One charged that Dozier had violated the Racketeer

Influence and Corrupt Organization (RICO) statute, 18 U.S.C.

§ 1962(c) by conducting the affairs of the Louisiana Depart-

ment of Agriculture—an “enterprise” within the meaning of 18

U.S.C. § 1961(4)—through a pattern of racketeering activi-

ties. In all, Count One described twelve separate acts of

racketeering that Dozier allegedly had committed between

December 1975 and October 1979. Each allegation depicted

Dozier’s solicitation of money from 4 person or business that

was or might have been affected by some action of the

Louisiana Department of Agriculture. Briefly, the twelve

allegations, designated by letters in the indictment, were as

follows:

(A) That Dozier, in August 1978, attempted to solicit $10,000

from Edward Simpson, owner of a livestock auction barn, in

return for providing a charter through the Livestock Charter

Commission and Sanitary Board;

(B) That Dozier, in November 1978, extorted $10,000 from

Floyd “Shorty” Giles by promising to deliver an auction barn

charter;

(C) That Dozier, in early 1976, attempted to extort $200,000

from Louisiana milk processors through Temple Brown, presi-

3a

dent of Brown's Velvet Dairy, in return for a promise to lower

the price of milk;

(D) That Dozier, in May 1976, extorted $4,900 from Walter

Davis by promising to provide a pesticide license;

(E) That Dozier, in August 1979, attempted to extort $20,000

from Alvin “Bugs” Burger, owner of a pest control company, in

return for using his influence with the Louisiana Structural

Pest Control Commission, which had questioned Burger’s abil-

ity to supervise his Louisiana concerns while residing in Flor-

ida;

(F) That Dozier, in July or August 1979, threatened the

owner of an aerial crop dusting service, Roy True, with shut-

down unless True paid him $2,000;

(G) That Dozier, in April 1978, asked James Pruitt for

$10,000 in return for securing him a seat on the Louisiana State

Market Commission;

(H) That Dozier, from January to May 1977, attempted to

extort $25,000 from Nicholas Fakouri and the Vermillion

Dairymen’s Cooperative Association in return for a loan

guarantee from the State Market Commission;

(I) That Dozier, from January to September 1976, attempted

to solicit a kickback of $10,000 from consultants Burk & Associ-

ates in return for contracts on a proposed New Orleans Food

Distribution Center;

(J) That Dozier, from January to September 1976, attempted

to extort $20,000 from the Louisiana Computer Company in

return for favorable treatment from the state;

(K) That Dozier, throughout 1976, attempted to solicit $1,000

from each member of the Louisiana Livestock Market Associa-

tion in return for a promise to restore state-compensated pri-

vate eterinarians to the auction markets and to raise the fees

charged by the markets on tests for cattle brucellosis;

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(L) That Dozier, in March 1976, accepted a bribe of $2,000

from John Lambert in return for promising to help Lambert

obtain a job in the Department of Agriculture.

Count One also designated eleven of these twelve incidents

(paragraphs A through K, supra) as violations of the Hobbs

Act, 18 U.S.C. § 1951, and the Louisiana bribery statute,

La.Rev.Stat.Ann. § 14:118 (West 1974 & Supp. 1981). One

incident (paragraph L) was alleged only as a violation of the

state bribery statute. Finally, Counts Two through Five iso-

lated four of these alleged transactions (paragraphs B through

E, supra) as separate offenses under the Hobbs Act.

The trial began on September 2, 1980. On September 23, the

jury returned a verdict finding Dozier guilty on all counts

except Count Four. The district court denied Dozier’s motions

for judgment of acquittal and for a new trial. On November 7,

the court sentenced Dozier to five years imprisonment and a

fine of $25,000 for the RICO conviction (Count One), to a

consecutive five-year term of imprisonment on Count Two,

and to five years of probation on Count Three. The court

suspended the imposition of sentence on Count Five and, as to

imprisonment only, on Count Three.

Dozier maintained throughout his trial that his various

solicitations were nothing more than the ordinary fundraising

activities of a public official faced with the financial burdens of

electioneering. Pursuing this theme on appeal, Dozier contests

the applicability of both RICO and the Hobbs Act to facts

adduced by the government. Interspersed with these matters

of statutery construction are protests regarding some of the

court’s rulings and its instructions to the jury. Having re-

viewed Dozier’s arguments with care, we believe that the

convictions must stand on every count. In giving our reasons,

we will address these contentions in the order presented by the

appellant.

5a

I. Is The Hobbs Act Unconstitutionally Vague As Applied To

Elected Officials?

The Hobbs Act prohibits the obstruction of commerce by

extortion, which it defines as “the obtaining of property from

another, with his consent, induced by wrongful use or actual or

threatened force, violence, or fear, or under color of official

right.” 18 U.S.C. § 1951(b)(2) (emphasis supplied). Only last

year we joined eight other circuits in holding “that Hobbs Act

violations based on extortion by a public official need not in-

cluded proof of threat, fear, or duress.” United States v. Wil-

liams, 621 F.2d 123, 124 (5th Cir. 1980), cert. denied, 450 U.S.

919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981). Our decision in

Williams reinstated a jury verdict convicting an elected school

board member who had solicited and received airline tickets

and cash from a contractor doing business with the school

board. In so doing, we overturned the district court’s con-

clusion that the phrase “obtaining . . . under color of official

right” is unconstitutionally vague.

Dozier necessarily concedes, therefore, that application of

the Hobbs Act to punish solicitation of funds by an elected

official is established precedent in this circuit. He seeks to

distinguish Williams, however, by pointing out that the school

board member convicted in that case made no attempt to

characterize or explain his “donations” as legitimate political

contributions. Dozier further submits that our rejection of the

facial constitutional challenge posed in Williams does not pre-

clude a holding that the Act’s language is unconstitutionally

vague as applied to an elected official confronted by the recur-

rent need to solicit and accept campaign contributions. As

written and as previously interpreted, ' Dozier continues, the

‘Dozier particularly attacks this court’s language in Williams

affirming the jury’s conviction of an official because he “accepted

money and gratuities, knowing he was not entitled to them in the

discharge of his lawful duties, and that payment was induced by his

official position.” 621 F.2d at 126. Dozier maintains that campaign

contributions necessarily are induced by an elected official's position

gs

Act’s injunction against taking money “under color of official

right” provides no guidelines or protection for innocent

fundraising and can only exert a chilling effect on this con-

stitutionally protected activity.

The Supreme Court has recognized the important function of

financial contributions in expressing support for candidates

and fueling political debate. E.g., Buckiey v. Valeo, 424 U.S.

1, 21, 96 S.Ct. 612, 635, 46 L.Ed.2d 659 (1976); Citizens

Against Rent Control v. City of Berkeley, _. U.S. —_,

—_-—., 102 S.Ct. 434, 435-436, 70 L.Ed.2d 492 (1981).

Moreover, as Dozier is quick to point out, commentators and

judges have expressed concern lest overzealous but unwitting

fundraisers be swept up in a net originally intended for the

truly venal. Criticizing a Second Circuit decision applying the

Hobbs Act against a Commissioner of Public Works who had

demanded campaign contributions from an engineering firm

under contract to his department, one writer has observed:

I}fa official who asks for a contribution

ore =

, or ‘ with the govern-

ment can be lon} of those facts alone, then

the Hobbs Act has become an mechanism

;

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and that politicians are never “entitled” to donations. As Dozier

himself points out, however, we were not addressing the problem of

fundraising in Williams and did not intend, therefore, for the quoted

phrase to serve as a well-chiseled standard in that context. This does

not mean that the boundary between legal fundraising and extortion

“under color of official right” is not discernible from the language and

judicial history of the Act, as explained infra.

Ta

Ruff, Federal Prosecution of Local Corruption. A Case Study

in the Making of Law Enforcement Policy, 65 Geo.L.J. 1171,

1196 (1977) (quoted in United States y. Cerilli, 603 F.2d 415,

437 (3d Cir. 1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62

L.Ed.2d 728 (1980) (Aldisert, J., dissenting)). See also Wil-

liams, supra, 621 F.2d at 126 (Tate, J., concurring).

{1} Despite the reasonableness of these apprehensions, we

remain unpersuaded that the Hobbs Act, as previously in-

terpreted by this and other courts, discourages legitimate

requests for political contributions. Our need to avoid hamper-

ing honest candidates who musi solicit funds from prospective

supporters does not require that the courts abandon this

recessary, if troublesome, realm of political maneuver to those

who would abuse its opportunities. A moment’s reflection

should enable one to distinguish, at least in the abstract, a

legitimate solicitation from the exaction of a fee for a benefit

conferred or an injury withheld. Whether described familiarly

as a payoff or with the Latinate precision of guid pro quo, the

prohibited exchange is the same: a public official may not

demand payment as inducement for the promise to perform (or

not to perform) an official act.

{2,3} In practice, of course, the fundraising defense makes

detection of impropriety more difficult. Demands for money by

an unelected official may constitute extortion per se; the latent

power of office ordinarily is sufficient to taint such demands as

coercive. See, e.g., United States v. Hathaway, 534 F.2d 386,

393 (1st Cir. 1976), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50

L.Ed.2d 79 (1976) (permitting conviction, without proof of

duress, of Executive Director of municipal Redevelopment

Authority who demanded kickbacks from construction con-

tractors). Where the accused is or was an elected official autho-

rized under our system to solicit contributions, however, a fine

line may separate a request for support from the sale of a favor.

As a sister court has observed, “No politician who knows the

identity and business interests of his campaign contributors is

ever completely devoid of knowledge as to the inspiration

behind the donation.” United States v. Brewster, 506 F.2d 62,

8a

81 (D.C.Cir. 1974). Consequently, we 40 not seek to punish

every elected official who solicits a monetary contribution that

represents the donor’s vague expectation of future benefits.

We must, nevertheless, discover and penalize those who,

under the guise of requesting “donations,” demand money in

return for some act of official grace.

The demanding of specific contributions in return for specific

actions for which the jury convicted Dozier well exemplifies

this type of political misconduct. To give as examples only the

first two violations alleged in the indictment, the government

produced evidence to show that Dozier asked for ten thousand

dollars in return for granting a charter to the owner of a

livestock auction barn. Loy Weaver, who represented owner

Edward Simpson in the charter negotiations, testified that

Dozier boasted of his control over the Livestock Sanitary

Board, which approves such charters: “If I say issue a charter,

they are going to issue a charter.” After closeting himself and

Weaver, Dozier said that he would help Simpson, continuing

“T’m in a position to help these people and they’re able to help

me.” Dozier eventually made his request more specific: “Well,

Mr. Simpson is able to help me . . . I think he ought to give me

five thousand dollars and his old daddy ought to give me five.”

While Dozier quickly denied Weaver's protest that he was

“putting a fee” on his help, the implication was clear. Simpson

eventually received his charter, as well as a phone call from

Dozier asking for the money. After Simpson had decided not to

send the money, he learned that the livestock board had dock-

eted a hearing on a proposed charter for a rival barn that would

greatly decrease the value of his charter.

The rival charter application had been submitted by a group

including Floyd Giles, a former Simpson employee. Giles had

compiled a record of health violations while operating the

auction barn for prior owners, and Dozier had conditioned his

agreement to provide a charter on Simpson’s discharge of

Giles. Giles testified, however, that Dozier later denied re-

sponsibility for the firing and offered to help Giles. This help

took the form of agreeing to deliver a charter to Giles and his

friends in return for twenty thousand dollars. As Giles put it,

“(Dozier told] me to bring him twenty thousand dollars. I asked

him about ten. How about me just bringing you ten thousand

dollars and give you the other ten thousand when you give me

that charter.” He said: “I'll go along with that.” The charter

was not forthcoming, however, because Simpson threatened to

publicize Dozier’s demands for money and the hearing on Giles’

charter never occurred. While Dozier had promised Giles his

money back if he failed to obtain the charter, Giles never saw

the money again. When pointedly asked by the prosecutor

whether his money had been a campaign contribution, Giles

“Call it no campaign. It was twenty thousand dol-

lars for a livestock charter; and I give him half of it then and

was going to give him the other half when I got the charter.”

In each instance of misconduct alleged in the indictment, the

scenario was roughly the same. Someone would solicit Dozier’s

aid as Commissiuner—assistance in dealing with a state agen-

cy, appointment to a state board, a state contract or loan

guarantee—and Dozier would name his price. On the basis of

many accounts like those of Simpson and Giles, a jury con-

victed Dozier of wrongfully obtaining or attempting to obtain

money “under color of official right.”

{4, 5] Yet Dozier complains that the language and prior

interpretations of the Hobbs Act do not give “a public official of

ordinary intelligence” an adequate description of the conduct

proscribed. We find this impossible to accept. In United States

v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S.Ct.

594, 597, Scag ttantaapant =o eaten

strong presumptive validity that attaches to an Act

st Gomes eo tod eka Coast te Gal ony themes at

statutes are not automatically invalidated as v —

the constitutionality

the sufficiency of the notice a statute must of necessity

10a

be examined in the light of the conduct with which a

defendant is charged.

Of course, we are mindful that a stricter insistence upon clarity

is necessary whenever a criminal statute’s “margin” may fade

into areas protected by the First Amendment. E.g. Smith v.

Goguen, 415 U.S. 566, 573, 94S.Ct. 1242, 1247, 39 L.Ed.2d 605

(1974) (state criminal statute proscribing “contemptuous treat-

ment” of American flag void for vagueness); Grayned v. City of

Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d

222 (1972) (city ordinance prohibiting person from making

disruptive noise whiie on ground adjacent to school in session

not unconstitutionally vague or overbroad). Still, we remain

unconvinced that we will create a snare for the innocent or

discourage legitimate fundraising by extending Hobbs Act

sanctions to an elected official who conditioned performance of

official acts on the payment of fees in the name of contributions.

When we evaluate “the sufficiency of the notice” afforded

Dozier by the Act “in the light of the conduct” with which he is

charged, his sales of influence do not qualify as marginal.

As we observed in Williams, supra, 621 F.2d at 125, “{i}t

cannot be gainsaid that the statute on its face encompasses

bribery of a public officiai, and that ‘under color of official right’

has a ‘meaning, as a legal term of art, [that] is well-defined.’ ” *

(Quoting United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir.

1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794

(1976). That term of art comes down to us from the common-

law crime of extortion, which consisted of the “corrupt taking

of a fee by a public officer, under color of his office, where no fee

is due, or not so large a fee is due, or the fee is not yet due.” W.

LaFave & A. Scott, Handbook on Criminal Law, 704 (1972).

* We also relied in Williams, 621 F.2d at 125, on the Supreme

Court’s decision in United States v. Culbert, 435 U.S. 371, 98 S.Ct.

1112, 55 L.Ed.2d 349 (1978), in which the Court stated that Congress

has “conveyed its purpose clearly” in the Hobbs Act and had “in-

tended to make criminal all conduct within the reach of the statutory

language.” Jd. at 380, 98 S.Ct. at 1117.

lla

If this technical meaning of the Act is inadequate to apprise

an official of ordinary mental competence that he may not

demand or accept money in return for requested exercises of

his official power, judicial elaborations offer assistance.

Perhaps most helpful is United States v. Braasch, 505 F.2d 139

(7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1562, 43

L.Ed.2d 775 (1975), which, while not involving an elected

official, placed the following gloss on section 1951:

The use of office to obtain pa ts is the crux of the

statutory requirement of color of official "z

and llants’ wrongful use of official power was

I the basis of this extortion. . . . It matters not whether

public official induces payments to perform his duties

or not to perform his duties, or even, as , to perform or

rept mb toa caannatyee 5 per fa poo S maa Ha np

be u because of his official position. So long as

the motivation for the payment focuses on the recipient's

, the conduct falls within the ambit of 18 U.S.C.

1951. That such conduct may also constitute “classic

bribery” is not a relevant consideration.

Id. at 151. (Citation and footnote omitted) (emphasis added).

Certainly the application of the Hobbs Act to the type of

conduct described in Trotta. supra, and United States v. Maz-

zei, 521 F.2d 639 (3d Cir. 1975), cert. denied, 423 U.S. 1014, 96

S.Ct. 446, 46 L. Ed.2d 385 (1975), both decided over six years

ago, should have notified any official wishing to skirt the bor-

ders of legality that any hint of a quid pro quo in soliciting

political funds is a dangerous business. The Mazzei Court

found that a state legislator had violated the Hobbs Act by

demanding kickbacks, payable to a “Senate Finance Re-

election Committee” from a business that leased office space to

the state. After reviewing evidence that the Senator had re-

quired lessors to pay ten percent of the lease value into this

“re-election” fund, the court concluded “that the evidence. . .

justified a finding that the payments to defendants were in-

duced by an exploitation of [the lessor’s] reasonable belief that

defendant’s position as a state senator provided him with effec-

12a

tive control over the state leases here involved. . . .” *521 F.2d

at 645. T'rotta, of course, added the broader interpretation that

the benefit exchanged for the extorted fee need not be specific:

“Such a quid pro quo may, of course, be forthcoming in an

extortion case, or it may not. In either event, it is not an

essential element of the crime.” 525 F.2d at 1100.

We need not even come near to the broader interpretation of

the Second Circuit in Trotta to place Dozier’s misconduct well

within the contours of the Act. Trotta, who demanded money

from a contractor subject to his influence without specifically

identifying the benefit to be -onferred, may have been operat-

ing on the margin of the law; Dozier, who demanded specific

amounts of money for specific favors, clearly was not. * He

cannot complain, therefore, that extension of the Act to cir-

*More recently, the Third Circuit applied the Hobbs Act to

another corrupt leasing scheme. In United States v. Cerilli, 603 F.2d

415 (3d Cir. 1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62

L.Ed.2d 728 (1980), officials of the Pennsylvania Department of

Transportation had demanded kickbacks from equipment lessors

doing business with the state. Rejecting the defendants’ excuse that

the payments were political contributions and that “the solicitation of

political contributions is not only lawful, but is protected by the First

Amendment,” id. at 418, the court concluded that their conduct

“constituted extortion regardless of whether the payments went into

appellants’ pockets or their party's coffers.” Jd. at 420. While the

court thus held that “the coercive solicitation of political contributions

is within the realm of actions that are illegal under the Hobbs Act,”

id. at 421 (emphasis added), it is apparent from the court's brief

recital of the facts that it was referring to an ordinary quid pro quo:

“(Tjhe defendants required that paymenis be made as condition to

the lessor’s equipment being used.” /d. at 418.

‘Trotta challenged his conviction under the Act by charging that

the indictment was defective “because of its failure to allege ‘a

specifically identifiable misuse of office,’ in which Trotta engaged, as

an unlawful quid pro quo for a consideration in the nature of official

action running from Trotta to [the contractor] in return for the

13a

cumstances like those presented in Trot:a may make difficult

identification of the Act’s outer bounds. Since Dozier’s conduct

“falls squarely within the ‘hard core’ of the statute’s proscrip-

tions,” see Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct.

2908, 2914, 37 L.Ed.2d 830 (1973), we adopt the solution of

Justice Holmes in United States vy. Wurzbach, 280 U.S. 396,

399, 50 S.Ct. 167, 169, 74 L.Ed. 508 (1930): “[I}f there is any

difficulty, which we are far from intimating, it will be time

enough to consider it when raised by some one whom it con-

cerns.” °

{6-9] Atthe very least, elected officials are, and have been,

on notice that any public officer, elected or otherwise, who

makes performance (or nonperformance) of an official act con-

tingent upon payment of a fee—whether or not the fee actually

is paid or the act actually performed—is guilty of extortion

payment of the money not lawfully owed.” 525 F.2d at 1100. Dozier

certainly cannot complain of any similar lack of specificity in his

indictment, which was rife with “specifically identifiable” quid pro

quos.

5 Quoted in Broadrick, supra, 413 U.S. at 609, 93 S.Ct. at 2914.

Similarly, we are unimpressed with the argument that our action

may “chill” legitimate solicitation. Certainly the last ten years of

constant litigation in this area does not appear to have produced such

paralysis. In any event, we cannot exonerate Dozier for his obviously

improper conduct on such an extremely tenuous possibility. As the

Court stated in Broadrick, in upholding a state statute challenged for

vagueness and overbreadth by one whose conduct it clearly pro-

scribed, “there comes a point where that [chilling] effect—at best a

prediction—cannot, with confidence, justify invalidating a statute on

its face and so prohibiting a State from enforcing the statute against

conduct that is admittedly within its power to proscribe.” 413 U.S. at

615, 93 S.Ct. at 2917-2918.

14a

“under color of official right.” ° Dozier’s vagueness challenge

must fail.

Il. Was The Jury Adequately Instructed On The Difference

Between Fundraising And Extortion Or Bribery?

Dozier attacks as reversible error the trial court’s refusal to

adopt a number of proposed instructions elaborating on the

difference between legitimate fundraising and criminal extor-

tion or bribery. We recently summarized our standard for

reviewing such allegations as follows:

The trial judge is given substantial latitude in tailoring

the instructions so long as they fairly and adequately

cover the issues presented. . got * important, the

propriety of a given instruction, or the failure to give a

instruction, is not received in the abstract;

rather, the uacy of the entire charge taken in the

context of the w trial is our proper scope of inquiry.

United States v. Pool, 660 F.2d 547, 558 (5th Cir. 1981) (cita-

tions omitted). See also United States v. Ruppel, 666 F.2d 261

at 273 (5th Cir. 1982); United States v. Kerley, 643 F.2d 299,

303 (5th Cir. 1981). Our review of the entire charge in its trial

context convinces us that Dozier’s challenges lacked merit.

* Contrary to Dozier’s contention, moreover, we find that the trial

court’s jury instructions on the Hobbs Act “fairly and adequately

covered] the issues presented.” United States v. Pool, 660 F.2d 547,

558 (5th Cir. 1981). The court defined extortion “under color of official

right” as follows:

Extortion under the color of official right is the wrongful taking by

a public officer of money or property not due him or his office,

whether or not the taking was accomplished by force, threats, or use

of fear. In other words, the wrongful use of otherwise valid official

power may convert dutiful actions into extortion. So, if a public

official threatens to take or withhold official action for the wrongful

purpose of inducing a victim to part with property, such a threat

would constitute extortion, even though the official was already duty

bound to take or withhuid the action in question.

l5a

[10] First, he contends that the court erroneously rejected

an instruction explaining that an official’s solicitation of con-

tributions from a person or business subject to his regulation is

not unlawful in itself. This instruction was unnecessary, how-

ever, since the court told the jury that “[t)he solicitation of

campaign contributions from any person is a necessary and

permissible form of political activity on the part of persons who

seek political office and persons who have been elected to

public office” (emphasis added). Having instructed the jury

that “any person” is a legal target for the political fundraiser,

the court did not need to inform the jury further that “persons

whose financial interests are or might be affected” are a species

of “person.”

{11] Dozier next submits that the court’s instructions on

the Hobbs Act left the jury without any guidance as to what is a

lawful political solicitation. Inviting us to take judicial notice of

the “profound mistrust” that large donations arouse in the

minds of many, Dozier asks for a reversal on grounds that the

trial court failed to tell the jury that the law does not restrict

the size of contributions and that officials may solicit funds,

while still in office, for a variety of legitimate purposes. These

contentions are groundless. The court specifically instructed

the jury that “persons who have been elected” may solicit

funds. More important, the court correctly instructed the jury,

as we have already noted, regarding the type of conduct prohi-

bited by the Act. It was not then incumbent upon the trial judge

to enumerate every type of activity that remained permissible.

Finally, Dozier complains that the court erroneously in-

structed the jury on the relevance of the donor’s intent under

both the Hobbs Act and the Louisiana bribery statute. The

trial court’s Hobbs Act instruction required conviction on a

showing that the defendant “knowingly and willingly” induced

the named persons to part with property by means of extor-

tion. He attacks this instruction on the basis of United States v.

Brewster, 506 F.2d 62 (D.C. Cir. 1974). Reliance upon Brews-

ter is misguided. Brewster grew out of an alleged infraction of

the federal Bribery of Public Officials and Witnesses statute,

l6a

18 U.S.C. § 201(c)(1). The instruction disapproved in that deci-

sion permitted conviction on a showing that the public official’s

acceptance of money “was done for or because of acts to be

performed by him in his official capacity, and was done willful-

ly and knowingly rather than by mistake or accident.” 506

F.2d at 81. Suggesting that every politician possesses some

“knowledge” of the self-serving expectations that accompany

many financial contributions, the court found it improper to

hold a public official responsible for knowing the motive of a

contributor. Jd.

{12] The case before us, by contrast, involves an extortion

charge. The emphasis is on the defendant’s own motives rather

than on his perception of a potential contributor’s motive. The

issue is whether Dozier “knowingly and willingly” induced

some of his constituents to pay him money by threatening to

take or withhold official action, not whether he accepted money

as contributions with “knowledge” of a donor’s corrupt intent.

Under these circumstances, the trial court’s instruction on

knowing and willful inducement, coupled with its already

approved definition of extortion, adequately presented to the

jury the elements of this crime.

{13, 14] Dozier’s complaint regarding the instructions on

the Louisiana bribery statute is similarly groundless. The

court charged the jury that its inquiry under the state bribery

law was “whether the political contribution is made or solicited

not as quid pro quo for specific action, but with the intent to

influence the conduct of the public servant in relation to his

position, employment or duty.” According to Dozier, this

wording focused the jury’s intention on the donor’s intent.

Dozier was the only defendant, however, and the entire trial

centered on allegations that he had wrongfully solicited funds.

Read in the trial context, therefore, the disjunctive wording

“made or solicited” adequately informed the jury that the

question before them was whether Dozier had solicited con-

tributions with the intent to base his own conduct on the

payment or refusal to pay. Moreover, the court already had

given the jury a much clearer explanation of intent under the

17a

statute. After discussing specific intent at length, the court

instructed the jury as follows:

Now, the bribe a a the giving or

to give acceptance or offering to accept a

bribe. statute would be violated in a situation where a

public officer or any person who has been elected to public

office, whether or not such person has assumed the duties

of that office, accepts or offers to accept any thing of

nt or prospective value with specific intent to in-

uence his conduct in relation to his position, employ-

ment, or duty (emphasis added).

We find that these instructions, like the others challenged by

Dozier, fairly presented the issues to the jury.

III. Did The Court Erroneously Permit Prosecution Witnes-

ses To Give Conclusory Opinions?

Dozier submits that the trial court erred in permitting

government witnesses to give their reasons for having paid, or

refrained from paying, the solicited funds. He also alleges that

the trial court improperly admitted conclusory lay opinions on

his guilt. These complaints are virtually identicai, since the

witnesses gave as reasons for their refusal or reluctance to pay

Dozier a belief that the payments were sought through duress,

or represented a bribe, or were “morally wrong.”

[15,16] This court previously has noted that “(t]he victim’s

fearful state of mind is a crucial element in proving extortion.”

United States v. Hyde, 448 F.2d 815, 845 (5th Cir. 1971), cert.

denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L. Ed.2d 745 (1972). See

also United States v. Adcock, 558 F.2d 397, 403-04 (8th Cir.

1977), cert. denied, 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277

(1977). State-of-mind evidence is admissible in a trial for extor-

tion under color of official right even though proof of direct

coercion is not required. United States v. Craig, 573 F.2d 513,

520 (7th Cir. 1978), cert. denied, 439 U.S. 820, 99 S.Ct. 83, 58

L.Ed.2d 111 (1978). Accordingly, the District Court commit-

ted no error in admitting the first-hand testimony of these

witnesses regarding their contemporaneous impressions of

Dozier’s financial demands.

18a

The trial judge cautioned the prosecution early in the trial

that it must confine such questioning to “whether or not the

feelings that [a witness] had are the feelings or the reasons that

he had at that time, and not on reflection at a later date, not

now why he did something.” After one witness described hav-

ing felt that Dozier’s “assessments” in return for official serv-

ices were “morally wrong,” the court reminded the jury, at the

defendant’s request, that moral wrong was not among the

issues before them. More important, the court explicitly admo-

nished the jury that a witness’s opinion on the legal significance

of Dozier’s conduct was not to guide their application of the law

as delivered by the court:

The fact that the witness feels something, or doesn’t feel

rermsein fol bg bboy bad tm dort segues You will be

on the law at the close of all the evidence. The

facts that you hear at this trial will be used in connection

with the law that I give you, not what anybody else says

that is controlling in this case. And based on the law that I

give you and your evaluation of the facts, then it becomes

your determination as to what was or was not a crime, if

any, in this particular case.

{i7, 18] The above instructions adequately informed the

jury that it was to consider the witnesses’ characterization of

Dozier’s conduct as “extortion” or “blackmail” or “a shake-

down” only as evidence of that witness’ perception of events as

they occurred, not as a conclusive legal opinion. If the defense,

having lost the argument on general admissibility, desired a

more precise limiting instruction on the extent to which the

jury could consider such testimony, it could, and should, have

requested one. See Fed.R.Evid. 103(a)(1), 105. As given, the

court’s cautionary remarks were sufficient to cure any preju-

dice that these otherwise admissibie statements might have

introduced. '

* Certainly these otherwise admissible expressions of a witness’s

state of mind on hearing Dozier’s demands did not become in-

admissible merely because they embraced an ultimate issue in the

trial. See Fed.R. Evid. 704.

19a

IV. Did The Government Fail To Prove That Dozier Con-

ducted The Affairs Of His Enterprise “Through A Pat-

tern Of Racketeering Activities”?

The jury convicted Dozier under Count One of the indict-

ment for having conducted the affairs of the Louisiana Depart-

ment of Agriculture through a pattern of racketeering activi-

ties, in violation of the RICO statute, 18 U.S.C. § 1962(c).

RICO makes it unlawful “for any person employed by or associ-

ated with any enterprise engaged in, or the activities of which

affect, interstate or foreign commerce, to conduct or partici-

pate, directly or indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity or collection

of unlawful debt.” Prior to trial, Dozier claimed that the

Louisiana Department of Agriculture was not an “enterprise”

within the meaning of the statute. Since precedent in this

circuit has compelled him virtually to abandon this approach, *

he now fastens on the word “through” to support hs argument

that the government failed to prove his guilt under the terms of

RICO.

{19} The statutory language “through a pattern of

racketeering activities” requires the government to prove,

according to Dozier, that his alleged activities “advanced” or

“furthered” the interests of his enterprise, the Department.

His argument relies primarily on a recent Fourth Circuit deci-

sion, United States v. Webster, 639 F.2d 174 (4th Cir. 1981),

cert. denied, ___. U.S. —__.,, 102 S.Ct. 307, 70 L.Ed.2d 152

(1981), in which that court held “that the prosecution was

required to prove that the ‘enterprise’ . . . had its affairs

advanced or benefited in some fashion, direct or indirect, by

* See, e.g., United States v. Brown, 555 F.2d 407, 416 (5th Cir.

1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1448, 55 L.Ed.2d 494

(1978) (holding municipal police department to be an “enterprise”

within meaning of Hobbs Act). See also United States v. Welch, 656

F.2d 1039 (5th Cir. 1981); United States v. Bright, 630 F .2d 804, 809

(5th Cir. 1980) (sheriffs’ offices held to be “enterprises”).

the pattern of racketeering activity.” Jd. at 185-86. In our

recent decision considering precisely this issue, United States

v. Welch, 656 F.2d 1039 (5th Cir. 1981), however, we found

“the reasoning of the Fourth Circuit, and its interpretation of

the word ‘through,’ to be unduly restrictive.” Jd. at 1060-61. In

our view, the government must prove that the predicate

offenses and the affairs of the enterprise are related.

We do not believe that Congress intended virtually to

insulate ee er eee

are being operated by means

activities, from i under section 1962(c) by

i that the be benefited by the racke-

teering activity , we conclude that by the use of

the word * intended only to require a

Id. at 1061-62.

20, 21] Welch is fatal to Dozier’s position, both in its

interpretation of the statutory language and in factual similar-

ity to this case. One of the RICO convictions upheld in Welch

was that of a county sheriff who had taken money from gamb-

lers in return for overlooking their local operations and from

prisoners in return for his use of official discretion to confer

special privileges. In finding the necessary link between the

“enterprise”—the Sheriff's Office—and the pattern of illegal

activity, we noted that it was the power and authority of his

office which enabled the sheriff and his confederates “to enter

agreements to refuse to enforce the law or to receive payments

for the refusal to enforce the law.” The offenses were a part of a

scheme to use the Sheriffs Office for illicit profit-making

activities. * Jd. at 1062.

* At oral argument, counsel for Dozier attempted to distinguish

Welch by pointing out that the sheriff in that case, once paid, actually

used the power of his office to grant favors or carry out threats.

Dozier, by contrast, never carried out the promises for which he was

paid or retaliated against those who rejected his demands. As we

indicated in Welch, however, the nexus between office and offense is

2la

{22] Similarly, the offenses that the jury found Dozier to

have committed represent a cynical attempt to turn an elective

office into a lucrative venture through the sale of official con-

sideration. That Dozier may have planned to spend all or a part

of his illegally acquired funds on another campaign for office,

thereby plowing the “returns” from his deals back into the

ongoing “business” of government, only underlines the vital

connection between his office and his offense. Only Dozier’s

position in the Department of Agriculture and his control over

its affairs enabled him to hawk its services for personal gain.

The nexus is clear.

V. Was Dozier Entitled To A Change Of Venue?

Dozier next contends that prejudicial pretrial publicity, cou-

pled with misconduct by the U.S. Attorney in charge of the

prosecution, entitled him to a change of venue. Principally, he

protests what he characterizes as the flagrant misconduct of

U.S. Attorney Donald Beckner in attracting press coverage to

the grand jury investigation. Included in the record are numer-

ous newspaper reports of Beckner’s statements concerning the

progress of his investigation. Most are confined to information

on the number of witnesses to be called on a given day or the

expected date of completion, and most contain refusals to name

witnesses who were to testify. As Dozier points out, however,

a few report Beckner as having named prospective witnesses,

complete when the power of office enables one to obtain, or at least

attempt to obtain, funds illegally. “Without the power and authority

of the Sheriff's Office, the defendants in this case (who were all either

members of the Sheriff's Office or were associated with the Sheriff's

Office in some way) would have been unable to refuse to enforce the

law or to receive payments for their refusal to enforce the law.” 656

F.2d at 1062. It is irrelevant to this nexus that Dozier was, in some

instances, less than successful in exacting an agreement or, in other

instances, less than faithful in carrying out those agreements

reached.

a practice specifically forbidden by Federal Rule of Criminal

Procedure 6(e) as interpreted by this Court in Jn Re Grand

Jury Investigation [T. Bertram Lance], 610 F.2d 202, 216-17

(5th Cir. 1980). Dozier insists, therefore, that the prosecution's

alleged failure to honor our strict policy of preserving the

secrecy of grand jury proceedings warrants our granting anew

trial, regardless of whether the misconduct resulted in any

demonstrable prejudice on the jury panel. The government

responds that any abuses which occurred were technical and

contained no factual information that could have swayed a

potential juror either way.

[23,24] Wedonot condone breac’es of grand jury secrecy,

however “technical.” Nevertheless, we cannot accept reversal

of an otherwise valid conviction as a remedy for every instance

of prosecutorial grandstanding during a grand jury investiga-

tion. Certainly we cannot order new trials solely because of

newspaper accounts of pretrial statements that have produced

no proven or even arguable prejudice to a defendant. “(TJhe

touchstone of due process analysis in cases of alleged pro-

secutorial misconduct is the fairness of the trial, not the culpa-

bility of the prosecutor.” Smith v. Phillips, __. U.S. —___.,

——, 102 S.Ct. 940, 947, 71 L. Ed.2d 78 (1982). The less drastic

remedy of a contempt citation must serve, therefore, to deter

prosecutorial indiscretion at the grand jury level, at least in the

absence of prejudice. "

” Dozier submits that a deferdant is “understandably reluctant” to

institute contempt proceedings against the government attorney

who must decide whether or not to prosecute him. We note, however,

that this is precisely the remedy sought by the defendant in Lance,

supra, 610 F.2d at 209-10. Lance, in fact, persistently requested

sanctions against the prosecution, including contempt citations and

instructions to the grand jury, throughout the grand jury investiga-

tion of his activities. Dozier, by contrast, apparentiy never sought

such appropriate relief from the district court until after the indict-

ment had issued and the damage, if any, was complete.

As for the publicity allegedly traceable to governmental

misconduct in this case, a well-established standard governs

our determination of whether the effects of pretrial media

coverage require a change of venue. In United States v. Capo,

595 F.2d 1086, 1090 (5th Cir. 1979), cert. denied, 444 U.S. 1012,

100 S.Ct. 660, 62 L. Ed.2d 641 (1980), we reiterated our duty to

evaluate claims founded on prejudicial pretrial publicity in

accordance with the due process standards announced in J rvin

v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

The Supreme Court there held that the constitutional guaran-

tee of a fair trial does not entitle a defendant to a jury wholly

ignorant of the facts surrounding his case.

In these days of swift, widespread and diverse methods

of communication, an important case can be expected to

arouse the interest of the in the vicinity, and scarce-

y of those best to serve as jurors will not

have some impression or opinion as to the merits of

the case. This is particularly t true in criminal cases. To hold

that the mere existence o any preconceived notion as to

the guilt or innocence of an accused, without more, is

sufficient to rebut the presum ofa ne ma a

impartiality would be to estab an impossible

Se Tncudiicioes the paver oun ly cote tds tmpronsion ox

opinion aud render a verdict based on the evidence pre-

sented in court.

366 U.S. at 722-23, 81S.Ct. at 1642-1643. See also Bronstein v.

Wainwright, 646 F.2d 1048, 1051-52 (5th Cir. 1981).

(25, 26] The defendants seeking reversal on grounds of

prejudicial pretrial publicity, therefore, normally assumes the

burden of proving the existence of actual jury prejudice. /d.

366 U.S. at 723, 81 S.Ct. at 1642-1643. Calley v. Callaway, 519

F.2d 184, 204 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96

S.Ct. 1505, 47 L.Ed.2d 760 (1976). In several instances the

Supreme Court has adopted a more stringent standard on

finding that the sensationalism surrounding a trial necessi-

tated a presumption of jury prejudice. See, e.g., Sheppard v.

Mazwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d

600 (1966); Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628,

24a

1632-1633, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373

U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963). As

we pointed out in Capo, 595 F.2d at 1090, however, these were

trials “wherein the press saturated the community with sensa-

tionalized accounts of the crime and court proceedings, and

was permitted to overrun the courtroom, transforming the

trial into an event akin to a three-ring circus.” There is

absolutely no showing, nor even any allegation, that the trial of

this case devolved into the type of Punch-and-Judy show de-

picted in those decisions. Indeed, Dozier complains only of

pretrial publicity, which creates a smaller danger of prejudice

than does sensationalism occurring throughout a proceeding.

See United States v. Williams, 568 F.2d 464, 468 (5th Cir.

1978). Thus, we return to the traditional “actual prejudice”

test, under which Dozier must show that community prejudice

actually invaded the jury box. United States v. Willies, 523

F.2d 1203, 1208 (5th Cir. 1975).

(27, 28] The District Court conducted a voir dire of the

prospective jurors before refusing the motion for a change of

venue. Dozier maintains that the court was insufficiently

zealous in sifting out prejudice flowing from news accounts and

complains that three-fourths of the twenty-eight empaneled

prior to peremptory strikes, had read or heard of allegations

against him. As our quotation from Jrwin v. Dowd suggests,

however, detection of actual prejudice is not accomplished

through juggling statistics, nor is a prospective juror’s mere

awareness of the allegations or facts to be presented conclusive

of his or her unfitness. Our focus must rest upon a juror’s

wiliingness and ability to put aside any preconceived notions of

guilt or innocence and return a verdict based strictly on

admissible evidence. Having completed an independent evalu-

ation of the voir dire in this case, and particularly of the

portions to which applicant refers us, we conclude that the trial

court did not err in rejecting the petition for a change of venue.

The trial judge conducted an extensive voir dire examination

of each prospective juror. He specifically asked each person

whether he or she had any personal knowledge of the case,

25a

what he or she knew, and whether this knowledge could impair

that person’s ability to serve as a fair and impartial juror.

Although many recalled having heard or read something about

the case, most could recall few details and all—except the three

who were struck for cause—indicated that they held no fixed

opinion in the case and would render a verdict based solely

upon the evidence presented in court. From the nearly ninety

persons questioned in this fashion, Dozier points to eight he

claims as especially egregious examples of “potential jurors

who indicated extensive exposure to publicity.” The court

excused two of these for cause. A third, Mr. Rager, is the

subject of a separate point of error discussed below. The

remaining five, without exception, stated that pretrial media

reports would not influence their ability to weigh the evidence

placed before them.

Mr. Timothy Tandy, for example, remembered having seen

television and newspaper coverage of charges made against

Dozier during his unsuccessful bid for reelection. He showed

only a vague recollection of their substance, however, and his

responses to the court’s probing demonstrated his ability to

remain impartial. Asked whether he could render a fair verdict

despite his living near the parents and sisters of Bob Odom,

Dozier’s political rival and successor as Commissioner, Tandy

replied:

A. I could return either — based on what was pre-

sented in court and by that. My knowledge of

the case, other than just epee ae

Sceuviplican of tie tats Vonealy, theta at

Do you have any opinion of any kind now about a

Dozier’s guilt or innocence?

Q

A. No opinion.

Q. Any feeling of any kind or conclusions?

A. Just I have—I don’t have enough knowledge about it

to have any problem or conclusion.

The defense never challenged Tandy for cause, and he

eventually served on the jury.

26a

As the government points out, the only instance in which the

trial court rejected a challenge for cause by Dozier was that

involving Mr. Rager, discussed in Part V1. The answers of the

remaining veniremen convinced the trial court, and have con-

vinced us, that these prospective jurors were both willing and

able to put publicity and preconceived opinions behind them

once they entered the jury box. We are satisfied, therefore,

that the District Court’s patient and comprehensive question-

ing resulted in the requisite “fair and disinterested panel of

jurors.” Capo, 595 F.2d at 1092.

VI. Did The Court Commit Manifest Error In Refusing To

Excuse Edward Rager?

Finally, Dozier takes particular exception to the trial court’s

refusal to excuse for cause panel member Edward Rager. He

insists that this error forced him to waste on Rager one of the

two preemptory strikes that were available to him in the

selection of the four alternate jurors. This, in turn, resulted in

the seating of an alternate who otherwise would have been

struck by the defense and who eventually sat on the convicting

jury.

[29] As Dozier notes, our general rule is that “it is error for

a court to force a party to exhaust his preemptory challenges on

persons who should be excused for cause, for this has the effect

of 2“~idging the right to exercise preemptory challenges.”

United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976). We

also observed in Nell, however, that “[wje have no psychic

calibers with which to measure the purity of the prospective

juror, rather, our mundane experience must guide us to the

impartial jury promised by the Sixth Amendment.” Jd. at

1230. Bearing in mind the difficulties of so imprecise a process,

we will set aside a trial court’s finding of impartiality only when

the error is manifest. Irvin v. Dowd, supra, 366 U.S. at 723-24,

81 S.Ct. at 1642-1643.

Under careful questioning by the trial court, Rager admit-

ted having heard in the news about the charges against Dozier,

although he recalled nothing specific. He also confessed to a

27a

threshold impression: “I suppose because the grand jury found

reason for a case, I would think that it would make it look more

he’s guilty than innocent, but I wouldn’t make—I could be

convinced otherwise, I guess.” After further instruction and

questioning, however, Rager showed an understanding that

he was not to consider the indictment as evidence and that

Dozier was presumed innocent until proven guilty. To later

inquiries on whether the indictment or pretrial news stories

would impair his ability to decide the case solely on the evi-

dence presented at trial, Rager responded “I don’t think so.”

Once the court had finished its questioning, counsel for

Dozier expressed concern about Rager’s reluctance to give

unqualified answers. The court agreed to call Rager back, and

the second period of questioning included the following ex-

change:

Q. [I}f you were chosen to serve as a juror in this case,

could you perform that duty and obligation and ac-

cord each side a fair, impartial, unbiased verdict,

based solely on the evidence presented at the trial of

this case?

A. I believe so.

Okay, believe it, now, I don’t want you to say you

ae go. Can you be sure, yes or no, that you could

I guess I could be absolutely sure.

What reservation would you have, or what problem

would you have in deciding the case based solely on

the evidence presented at the trial?

A. Well, again, I would think I would be able to do that.

If anything hindered it, it would be unconsciously

heard before. I wouldn’t think it would

effect me, but I just can’t be sure. You know—

. Let me ask you this way. Would you intentionally

. comsiiat eitetainn that yas'va neal ior to the trial

of this case in reaching your verdict

A. No.

©

© >

© >

© >

© >

Well, just what I said before, when I first heard the

ae ag eS angtane pal pines agg tet

paign. But w y came up again, I though

maybe there was something to them.

Do you understand that the burden rests with the

United States to a Dake aoe payens 6

reasonable doubt? Do you that?

Yes, sir.

You understand that Mr. Dozier does not have to

Evonabeal the trial He has a right to remain silent

the trial, and he does not have to present

any evidence, testimony, or any other type of evi-

dence in the case to prove that he is innocent. Do you

understand that?

Yes.

The burden always remains with the government.

Would you require that Mr. Dozier prove himself

innocent or would you—let me ask you that question

first. Would you require that Mr. Dozie r prove him-

self innocent on your feelings about this case?

No.

Would you be able to accord to Mr. Dozier his con-

stitutional right that he has, the right to be

Could in I ask this I hate to

belabor it, but I want ts be—I want to keep

calling you back in here. Could you, to the best of your

ability, decide this case based solely and only on the

evidence presented at wed». trial — case, and not

en ae any other accounts

that you may have csiaints cuudieg tothe ediart?

A. Yes, sir

Q. Are you certain that you can do that?

A. Well—

Q. Insofir as humanly possible?

A. Yes, sir

The trial judge then refused to excuse Mr. Rager for cause,

giving this explanation of his ruling:

Well, I’m Be neoronnh from = Seo testimony, both

initially and render a fair verdict

a Obs Gon be sot would’ afford Mo: Dozier all of his con-

stitutional rights, both the of innocence and

also to not require Mr. Dozier to t any evidence at

Se ae aeinade col heinan tat te Gada

what subconsciously w , but he wouldn’t

icleatiiandiiy of 0 concider ane ¢ outside the rec-

ord of this case, but would base his decision based solely on

the evidence presented and the law presented at the trial.

[30] We find this an acceptable constructio:. of Rager’s

responses to the voir dire and are unable to conclude that the

court’s refusal to excuse Rager amounts to an abuse of discre-

tion. See United States v. Apodaca, 666 F.2d 89 (5th Cir. 1982).

Rager was temperamentally disinclined to yield categorical

answers, as the response “I guess I could be absolutely sure”

amply demonstrates. Still, his remarks on his ability to shut

out prior impressions do not suggest prejudice or a fixed opin-

ion so much as an unusually candid skepticism toward human

capacity for emptying the subconscious at a moment’s notice.

Moreover, his admission to a pretrial impression that a grand

jury indictment “make[s] it look like he’s more guilty than

innocent” is hardly an unalterable, or even unusual, notion.

Probably many laymen hold such an exalted view of indict-

ments until cautioned otherwise.

American judicial opinion on this subjeet very nearly begins

with Chief Justice Marshall’s dictim that “light impressions

which may fairly be supposed to yield to the testimony that

may be offered; which may leave the mind open to a fair

consideration of that testimony, constitute no sufficient objec-

tion to a juror.” 1 Burr’s Trial 416 (1807) (quoted in Jrvin v.

Dowd, 366 U.S. at 722, n.3, 81 S.Ct. at 1642 n.3). Under the

court’s questioning and instruction, Rager agreed to put aside

prior impressions, to accord the presumption of innocence and

the right to silence, and to consider only the evidence pre-

sented at trial “insofar as humanly possible.” We can ask no

more of those who must assume, for the duration of a trial, the

almost superhuman posture of complete impartiality.

CONCLUSION

In sum, we conclude that Gilbert Dozier received a fair trial

before a properly selected and correctly instructed jury. The

judgment below must be affirmed in all respec*~

AFFIRMED.

8la

APPENDIX B

UNITED STATES OF AMERICA

Vv.

GiLBert L. Dozier

Crim. No. 80-02-B.

United States District Court,

M. D. Louisiana.

July 30, 1980.

On defendant’s motion to dismiss first count of indictment,

the District Court, Polozola, J., held that Louisiana Depart-

ment of Agriculture was an “enterprise” within the meaning of

Racketeer Influenced and Corrupt Organizations Act.

Motion denied.

Donald L. Beckner, U.S. Atty., Mitchell B. Lansden, Ian F.

Hipwell, Asst. U.S. Attys., Baton Rouge, La., for plaintiff.

Camille Gravel, Alexandria, La., E. Drew McKinnis,

McKinnis, Juban & Bevan, Baton Rouge, La., William H.

Jeffress, Jr., Miller, Cassidy, Larroca & Lewin, Washington,

D.C., for defendant.

POLOZOLA, District Judge.

The defendant, Gilbert L. Dozier, has filed a motion to

dismiss Count I of the indictment on the grounds that the

Department of Agriculture is not an “enterprise” as defined in

the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. § 1961, et seq. No oral argument is required

on this motion.

The Court finds that the Louisiana Department of Agricul-

ture is an enterprise within the meaning of 18 U.S.C. § 1961(4).

Therefore, defendant’s motion to dismiss Count I of the indict-

ment must be denied. United States v. Bright, 78-5472 (5 Cir.

July 11, 1980); United States v. Brown, 555 F.2d 407 (5 Cir.

1977), certiorari denied 435 U.S. 904, 98 S.Ct. 1448, 55

L.Ed.2d 494 (1978); United States v. Baker, 617 F.2d 1060 (4

Cir. 1980); United States v. Grzywacz, 603 F.2d 682 (7 Cir.

1979); United States v. Frumento, 563 F.2d 1083 (3 Cir. 1977);

United States v. Bacheler, 611 F.2d 443 (3 Cir. 1979); United

States v. Vignola, 464 F. Supp. 1091 (E.D.Pa. 1979); aff.

mem., 605 F.2d 1199 (3 Cir. 1979); United States v. Altomare,

625 F.2d 5 (4 Cir. July 17, 1980); United States v. Barber, 476

F. Supp. 182 (S.D.W.Va. 1979).

Therefore:

IT ISORDERED that defendant’s motion to dismiss Count

I of the indictment be and it is hereby DENIED.

re,

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 80-3927

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

GiLBert L. Dozier,

Defendant-Appellant.

FILED May 13 1962

Appeal From The United States District Court

For The Middle District Of Louisiana

ON PETITION FOR REHEARING

AND SUGGESTION FOR

REHEARING EN BANC

(Opinion April 8, 5 Cir., 1982, ___ F.2d ___).

(May 13, 1982)

Before Wispom, Sam D. JoHNsSON and WILLIAMs, Circuit

Judges.

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no member

of this panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc, (Rule 3b Federal Rules of Appellate Procedure; Local

Fifth Circuit Rule 16) the Suggestion for Rehearing En Banc is

DENIED.

er —_

34a

( ) 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

Suggestion for Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc, and

a majority of the judges in active service not having voted in

favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT

/s/ J. S. Williams

J. S. WiLLiams

United States Circuit Judge

judgment

DENIED.

35a

APPENDIX D

UNITED STATES OF AMERICA

Vv.

GiLBert L. Dozier

Crim. No. 80-02-B.

United States District Court,

M. D. Louisiana.

Minute Entry:

November 5, 1980

Polozola, J.

The defendant, Gilbert L. Dozier, has filed a motion for a

new trial and a motion for a judgment of acquittal. No oral

argument is required on these motions.

For reasons previously assigned in pre-trial motions or dur-

ing the trial of this case, defendant’s motion for a new trial and

defendant’s motion for a judgment of acquittal must be denied.

The Court reserves the right at a later date to supplement its

prior rulings by filing additional written reasons in the record

of this case.

Therefore:

IT ISORDERED that the motions of Gilbert L. Dozier for a

of acquittal and for a new trial be and each is hereby

/s/ Frank J. Polozola

FRANK J. POLOZOLA

United States District Judge