Petition — Primrose v. United States
Supreme Court brief1984
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83-1694 desea
| APR 17 1984
No. eeeeccesorccoscccces EVA |
Gnthe Supreme Court of the Wnited States
OcToOBER TERM, 1983
JIMMIE HAROLD PRIMROSE
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
GENE STIPE
Counsel of Record
ANTHONY M. LAIZURE
Stipe, Gossett, Stipe, Harper, Estes,
McCune and Parks
323 East Carl Albert Parkway
Post Office Box 1368
McAlester, Oklahoma 74502
(918) 423-0421
Attorneys for Petitioner
April, 1984
QUESTIONS PRESENTED
1. Where there was massive and pervasive pre-trial
publicity surrounding the Oklahoma County Commissioner
kickback scandal investigation and trials, and where pro-
spective jurors admitted having been exposed to some pre-
trial publicity, did the Trial Court have a constitutional
duty to examine each prospective juror individually to de-
termine what each juror had heard or read and how it
might affect their ability to be fair and impartial?
2. In a mail fraud, kickback prosecution of an Okla-
homa County Commissioner, are the mailings of warrants
(checks) to vendors as payment for materials purchased
by the County, criminal under the Federal Mail Fraud
Statute, when the mailings are made or caused to be made
under the Imperative Command of Duty imposed by State
Law?
—
TABLE OF CONTENTS
—- PAGE
QUESTIONS PRESENTED .._..._.-. i
III UN Hc. cicdicsinicosssSamnniuseseadiandiictndebiiaaeeneandiansiaanas 1
RSET ere ence ERR Se SF 1
CONSTITUTIONAL AND STATUTORY PRO-
PROVISIONS INVOLVED IN THIS CASE _ 2
STATEMENT OF THE CASE
A. Procedural Background of the Case _...__
B. Relevant Facts Material to a Consideration of
I at 5
REASONS FOR GRANTING THE WRIT:
I. In holding that the Voir Dire conducted by the
trial court adequately protected Petitioner’s Con-
stitutional right to be tried by a panel of fair and
impartial jurors, the Tenth Circuit Court of Ap-
peals, in effect, decided an important Federal
Constitutional question which has not been, but
should be, settled by this Court, to-wit: In Fed-
eral criminal cases, where there has been massive
and pervasive pre-trial publicity, and where pro-
spective jurors admit having been exposed to
some pre-trial publicity, does the Constitution,
specifically, the Due Process Clause and the Sixth
Amendment right to a fair and impartial jury
trial, require the trial court to individually ex-
amine each prospective juror who admits being
being exposed to pre-trial publicity, concerning
the nature and extent of their exposure to pre
trial publicity, or, can the trial court simply rely
on the juror’s assurances that he can be fair and
impartial? asaikiinosansinaneplnedaatadielentonng 7
—iii—
TABLE OF CONTENTS CONTINUED PAGE(S)
II. The Tenth Circuit Court of Appeals’ holding that
the mailings of the warrants and invoices were
for the purpose of executing the scheme to de-
fraud is in direct conflict with this Court’s de-
cision in Parr v. United States, 363 U.S. 370, 80
S.Ct. 1171, 4 L.Ed.2d 1277 (1960) — 14
III Seis cnc rcntondecene - 22
APPENDIX A—
Opinion of the United States Court of Appeals for
the Tenth Circuit
APPENDIX B—
Petition for Rehearing by Appellant,
Jimmie Harold Primrose
APPENDIX C —
Order Denying Petition for Rehearing
APPENDIX D—
Opinion of the United States Court of Appeals for
the Tenth Circuit in United States v. Jim Whitt,
No. 82-2213
os f Yours
TABLE OF AUTHORITIES
Cases PAGE(S)
Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d
751 (1961) — se Ne ee m * = os:
Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.
2d 589 (1975) - Sete anes: MS
Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.
Ed.2d 1277 (1960) _....__- 14, 16, 17, 18, 19, 20, 21, 22, 23
Reynolds v. United States, 98 U.S. 145, 25 L.Ed.2d 244
CRED setae aaoeilksnsiciaitapuigitmaaicaeniiaaaae aa ae
United States v. Blanton, 700 F.2d 298 (6th Cir. 1983),
vacated 703 F.2d 981 (1983) . SRE ISATEE, F
United States v. Maze, 414 USS. 395, 94 S.Ct. 645, 38
L.Ed.2d 603 (1974) - BOSS puters 18, 21
United States v. Primrose, 718 F.2d 1484 (10th Cir.
|: Seabee wo 18-19
United States v. Wood, 299 US. 123, 57 S.Ct. 177, 81
L.Ed. 78 (1936) _..... fos 9
United States v. ities 561 F. 24 466 (3rd Cir,
1977) - sisSleahted : : Sos
United States Constitution
Amendment V sdicteaselieihedccninatndcd ct ictditdeadcaeee 2
Amendment VI _......... ss oN
United States Code
| RE ee LAE AC NR EN
Be a Oe TIE, cusscotesesdcsnsensnaatderd bentisueticak aed 3
Statutes
Sy EINES UF UIT’ siicdiccesninsonieshesdabhancliioniacnlesepassiacebienteammicatianaeamanaladte 3
eS IIIT: cninnsoactniciceestdeeclannnianlineiereiddaesemaadaasi eee
Nyce Aa
In the
Supreme Court of the United States
OcTOBER TERM, 1983
JIMMIE HAROLD PRIMROSE
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
The Petitioner, Jimmie Harold Primrose, requests that
a Writ of Certiorari issue to review the judgment of the
United States Court of Appeals for the Tenth Circuit en-
tered in this case on September 30, 1983.
OPINION BELOW
The opinion of the United States Court of Appeals for
the Tenth Circuit was published and appears at 718 F.2d
1484 (1983), and appears in Appendix A of this Petition.
No opinions were rendered by the trial court.
JURISDICTION
The Petitioner is seeking a Writ of Certiorari to the
United States Court of Appeals for the Tenth Circuit in
order to review a judgment entered on September 30, 1983.
= =
A timely Petition for Rehearing was denied by the United
States Court of Appeals for the Tenth Circuit on February
17, 1984. Jurisdiction is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
IN THIS CASE
1. The United States Constitution, Amendment V, pro-
vides, in pertinent portion:
“. . . No person shall be . . . deprived of life, liberty,
or property, without due process of law. . .”
2. United States Constitution, Amendment VI, pro-
vides, in pertinent portion:
“In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of ... district wherein the crime shall have been
committed .. .”
3. Title 18 U.S.C. § 1341 provides, in pertinent por-
tion:
“Whoever, having devised or intending to devise any
scheme or artifice to defraud . . . for the purpose of
executing such scheme or artifice or attempting so to
do, places in any post office or authorized depository
for mail matter, any matter or thing whatever to be
sent or delivered by the postal service .. . or know-
ingly causes to be delivered by mail according to the
direction thereon, or at the place at which it is directed
to be delivered by the person to whom it is addressed,
any such matter or thing, shall be fined not more than
$1,000.00 or imprisoned not more than five (5) years,
or both.”
a
4. Title 19 O.S. $3 provides, in pertinent portion:
“The powers of a county as a body politic and corporate
shall be exercised by its Board of County Commis-
sioners .. .”
5. 19 O.S. § 347 provides, in pertinent portion:
“. . . All warrants upon the County Treasurer for a
County purpose shall be issued upon the order of the
Board of County Commissioners, drawn by the County
Clerk, signed by the Chairman of the Board, and at-
tested by the signature of the County Clerk, with the
County Seal attached. Each warrant shall designate
the fund, department and appropriation account, and
shall further show the nature of the indebtedness ac-
knowledged by the allowance of the claim so paid...”
STATEMENT OF THE CASE
A. Procedural Background of the Case
Petitioner was indicted and charged with Thirty-Eight
(38) Counts of Mail Fraud and Three (3) Counts of Ex-
tortion, in violation of 18 U.S.C. § 1341 and § 1951, respec-
tively. Voir Dire was held on June 7, 1982, and jury trial
commenced on June 15, 1982. The jury returned its ver-
dict on June 18, 1982, finding the Petitioner guilty of Thir-
teen (13) Counts of Mail Fraud, but acquitting: the Peti-
tioner on the remaining Counts of Mail Fraud and on all
Counts of Extortion. Petitioner was sentenced to thirteen
(13) years of imprisonment and fined $13,000.00 and or-
dered to pay restitution to Murray County, State of Okla-
homa, in the sum of $766.28.
Petitioner perfected an appeal to the United States
Court of Appeals for the Tenth Circuit. Petitioner argued,
—
among other things, that the Voir Dire conducted by the
trial court was inadequate to ascertain whether each juror
could be fair and impartial in light of the massive and per-
vasive pre-trial publicity surrounding the Oklahoma County
Commissioner Kickback scandal. The Petitioner further ar-
gued that the routine mailing of county warrants, made
under the imperative command imposed upon County Offi-
cials by state law, could not be for the purposes of exe-
cuting the scheme to defraud as alleged.
The United States Court of Appeals for the Tenth Cir-
cuit affirmed the Petitioner’s conviction on all Counts. A
copy of the Opinion of the United States Court of Appeals
for the Tenth Circuit is attached hereto as Appendix A.
The Petitioner herein timely petitioned the United
States Court of Appeals for the Tenth Circuit for a rehear-
ing in his case. A copy of Petitioner’s Petition for Rehear-
ing in the United States Court of Appeals for the Tenth
Circuit is attached hereto as Appendix B. The United
States Court of Appeals for the Tenth Circuit denied the
Petitioner’s Petition for Rehearing and a copy of said de-
nial is attached hereto as Appendix C.
B. Relevant Facts Material to a Consideration
of Questions Presented
At the time of his indictment, Petitioner was a County
Commissioner for Murray County, State of Oklahoma. Each
County in the State of Oklahoma is divided into three (3)
districts and each district elects a Commissioner. Collec-
tively, they are known as the Board of County Commis-
sioners and act as the governing and managing body of
their respective counties.
=
Petitioner’s indictment was the result of a statewide,
ongoing Federal investigation into alleged corrupt practices
by County Commissioners in the State of Oklahoma. The
indictment charged Petitioner with accepting cash kick-
backs from vendors or sellers of road and bridge building
equipment and supplies. Federal jurisdiction was premised
on the theory that the mailing of the warrants or checks
as payment for the equipment and supplies was in further-
ance of the scheme to defraud.
Prior to trial, Petitioner requested the trial court to
individually examine each prospective juror. In support of
that request, Petitioner attached several newspaper articles
which contained information concerning the progress of the
ongoing Federal investigation into the alleged corrupt prac-
tices of County Commissioners and vendors in the State of
Oklahoma. Before asking the prospective jurors whether
they had been exposed to any pre-trial publicity, the trial
court acknowledged that thc ongoing investigation had re-
ceived considerable publicity. In fact, according to a scien-
tific poll attached by Petitioner to his request for individual
examination of jurors, only six (6) per cent of those polled
said they had not heard of the Federal kickback investiga-
tion and sixty-three (63) per cent of those polled believed
that corruption was widespread among County Commis-
sioners in the State of Oklahoma.
Petitioner submitted several proposed Voir Dire qués-
tions which were not asked by the trial court. These ques-
tions were designed to probe into the extent and depth
of each prospective juror’s exposure to the massive and
lengthy publicity surrounding the Oklahoma County Com-
missioner Kickback scandal and investigation. However,
mT es
the trial court limited its inquiry into the area of pre-trial
publicity by simply asking the jurors if they had read or
heard anything about the County Commissioner investiga-
tion, and if so, would they be able to put aside what they
had read or heard and give Petitioner a fair trial. The trial
court also asked the jurors whether they had expressed
an opinion concerning the ongoing investigation or whether
anyone they had corfidence and trust in expressed an opin-
ion concerning the matter that could have influenced them.
The Voir Dire of the trial court did result in some jurors
admitting they had formed an opinion which they thought
would take some evidence to remove. However, the re-
maining jurors told the trial court there was nothing that
would prevent them from serving as fair and impartial
jurors.
In order to prove the allegations of mail fraud in the
indictment, the Government relied upon the testimony of
several vendors or sellers that the Petitioner had done busi-
ness with during his tenure as County Commissioner of
Murray County. Although the details of their testimony
varied, each one testified that they paid cash kickbacks to
the Petitioner whenever he purchased equipment or ma-
terials from them. The kickback was always paid in cash
and ‘vas usually based upon a percentage of the tota! sales
price of the particular o.der. However, before the seller
could receive payment on an item sold to the County, the
entire Board of Cou:.ty Commissioners had to approve the
purchase and authorize the County Clerk to issue a war-
rant or check as payment for the purchase. The testimony
at trial showed that all warrants issued by Murray County
were mailed to the various vendors for payment of ma-
terials purchased.
a
REASONS FOR GRANTING THE WRIT
I. IN HOLDING THAT THE VOIR DIRE CONDUCTED BY
THE TRIAL COURT ADEQUATELY PROTECTED PE-
TITIONER’S CONSTITUTIONAL RIGHT TO BE TRIED
BY A PANEL OF FAIR AND IMPARTIAL JURORS, THE
TENTH CIRCUIT COURT OF APPEALS, IN EFFECT,
DECIDED AN IMPORTANT FEDERAL CONSTITU-
TIONAL QUESTION WHICH HAS NOT BEEN, BUT
SHOULD BE, SETTLED BY THIS COURT, TO-WIT:
IN FEDERAL CRIMINAL CASES, WHERE THERE HAS
BEEN MASSIVE AND PERVASIVE PRE-TRIAL PUB-
LICITY, AND WHERE PROSPECTIVE JURORS ADMIT
HAVING BEEN EXPOSED TO SOME PRE-TRIAL PUB-
LICITY, DOES THE CONSTITUTION, SPECIFICALLY,
THE DUE PROCESS CLAUSE AND THE SIXTH AMEND.-
MENT RIGHT TO A FAIR AND IMPARTIAL JURY
TRIAL, REQUIRE THE TRIAL COURT TO INDIVID-
UALLY EXAMINE EACH PROSPECTIVE JUROR WHO
ADMITS BEING EXPOSED TO PRE-TRIAL PUBLICITY,
CONCERNING THE NATURE AND EXTENT OF THEIR
EXPOSURE TO PRE-TRIAL PUBLICITY, OR, CAN THE
TRIAL COURT SIMPLY RELY ON THE JUROR’S AS-
SURANCES THAT HE CAN BE FAIR AND IMPARTIAL?
In order to properly answer this ques*tion, it will be
necessary to review the present constitutional standards of
fairness and impartiality, then address the reasons why the
Constitution requires an inquiry into the nature and ex-
tent of a juror’s exposure to pre-trial publicity in highly
publicized cases notwithstanding an assurance by the pro-
spective juror that he can be fair and impartial.
It has long been the rule that a criminally accused is
entitled to a fair trial by a pane! of impartial, “indifferent”
jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d
751 (1961). “In the language of Lord Coke, a juror must be
a oe
as ‘indifferent as he stands unsworne.’” Co. Litt. 155b.
Irvin, 366 U.S. at 722, 81 S.Ct. at 1642. Today’s communi-
cations industry has made it much more difficult to find
Lord Coke’s ideal juror. It is more the norm than the ex-
ception that a highly publicized, important criminal case
can arouse not only the interests of the public in the vi-
cinity of the trial, but of the entire nation as weil. This
Court has therefore recognized that jurors do not have to
he totally ignorant of the facts and issues involved. On the
contrary, the Court said in Irvin that in important cases,
“scarcely any of those best qualified to serve as jurors will
not have formed some impression or opinion as to the
merits of the case.” 366 U.S. at 722, 81 S.Ct. at 1642.
Standing alone, that is not sufficient to rebut the pre-
sumption of a prospective juror’s impartiality. The test to
determine a juror’s impartiality is whether the juror “can
lay aside his impression or opinion and render a verdict
based on the evidence presented in court.” 366 U.S. at 723,
81 S.Ct. at 1643.
It is the duty of the trial court in the first instance to
determine whether a juror can be fair and impartial. In
fulfilling that duty, the trial court must determine the
nature and strength of any opinion or impression formed
by a prospective juror and then decide whether the strength
of that opinion is such as in law to necessarily raise the
presumption of partiality. The question thus presented to
the trial court is one of mixed law and fact. Reynolds v.
United States, 98 U.S. 145, 25 L.Ed. 244 (1878). The finding
of the trial court upon that issue should not be set aside
by a reviewing court unless the error is manifest. Reynolds,
98 U.S. at 154, 25 L.Ed. at 246.
~~
This Court has heretofore refrained from setting any
specific rules or standards for a trial court to follow in mak-
ing his determination of a juror’s impartiality. In United
States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78
(1936), Chief Justice Hughes stated “impartiality is not
a technical conception. It is a state of mind. For the ascer-
tainment of this mental attitude of appropriate indifference,
the Constitution lays down no particular tests and proced-
ure is not chained to any ancient and artifical formula.”
Although there are no specific rules or guidelines which
a trial court must follow, he still has a constitutional duty
to protect an accused’s constitutional rights to due process
and a fair and impartial jury trial by assessing each pros-
pective juror’s ability to be fair and impartial. The focus
of Petitioner’s narrow argument in this case is that in cases
involving ongoing, massive and pervasive pre-trial pub-
licity, such as the instant Oklahoma County Commissioner
Kickback scandal and investigation, the trial court cannot
simply rely on a juror’s assurances that he can be fair and
impartial, especially when the juror admits to having heard
or read about the matter being inquired into. Petitioner
contends that the failure of a trial court to inquire into the
extent of a juror’s exposure to pre-trial publicity does not
staisfy the requirements of the Due Process Clause of the
Sixth Amendment guarantee to a fair trial by a panel of
impartial and indifferent jurors for the reason that the trial
court cannot fulfill his constitutional duty to determine the
strength of a prospective juror’s opinion or impression with-
out first making inquiry into the factual basis for that jur-
or’s impression or opinion.
="
This court has said in dicta that “the juror’s assurances
that he is equal to this task cannot be dispositive of the
accused’s rights, and it remains open to the defendant to
demonstrate the actual existence of such an opinion in the
mind of the juror as will raise the presumption of f2r-
tiality.” Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2081,
44 L.Ed.2d 589 (1975).
And in Irvin, the court said “no doubt each juror was
sincere when he said that he would be fair and impartial
to Petitioner, but the psychological impact requiring such
a declaration before one’s fellows is often its father.” 366
U.S. at 728, 81 S.Ct. at 1645.
Petitioner contends that a defendant cannot show the
existence of an opinion in the mind of a juror that would
raise the presumption of partiality without first knowing
waat information concerning his particular case a juror has
been exposed to. Indeed, several of the lower circuits, in
varying degrees, disapprove of relying on a juror’s assur-
ances of impartiality. A survey of the circuit courts done by
the Sixth Circuit in United States v. Blanton, 700 F.2d 298
(6th Cir. 1983), vacated, 703 F.2d 981, shows that at least
four (4) circuits, the Second, Fifth, Ninth and Eleventh,
believe that in cases where pre-trial publicity raises a sig-
nificant possibility of prejuclice, a juror’s assurance of im-
partiality is insufficient. 700 F.2d 304-305 (Citations therein
omitted). The Sixth Circuit also found that two (2) other
circuits, the First and the District of Columbia Circuit, have
stated in strong language, albeit in dicta, that a juror’s as-
surances of impartiality are insufficient. 700 F.2d 304-305
(Citations therein omitted).
|
Petitioner therefore contends that the Constitution re-
quires that the trial court, in order to determine the per-
centage of veniremen who have a preconceived opinion,
Murphy, 421 U.S. at 803, 95 S.Ct. at 2037, and in order to
test the strength of that opinion, must in cases of pervasive
publicity, inquire into the depth of the individual tales-
man’s exposure to the publicity.
Petitioner contends that before the trial court can an-
swer the factual portion of the mixed question of law and
fact, he must make himself aware of the nature and extent
of the juror’s exposure to pre-trial publicity. Common
sense telis us that people’s opinions and impressions are
based on what they see, hear and read. Merely knowing
that someone has seen, read or heard about something does
not give one enough information to evaluate the strength
of that person’s opinion on the subject matter. However,
once the nature and extent of that person’s exposure to the
subject matter is learned, then a more intelligent evaluation
and determination of the strength of that person’s opinion
on the subject matter can be had.
Unless and until a trial court makes inquiry into the
nature and extent of a juror’s exposure to pre-trial pub-
licity, he cannot properly evaluate a juror’s assurances that,
despite having admitted being exposed to some of the pre-
trial publicity, he can nonetheless be fair and impartial.
Unless a trial court makes that inquiry, Petitioner contends
the trial court fails to fulfill its duty to protect a defendant’s
constitutional right to a jury trial before a panel of fair
and impartial jurors for the reason that the court would
have insufficient facts before it on which to make a deter-
mination as to the strength of the juror’s opinion. Putting
=— =
it simply, a trial court cannot ev2luate or determine the
strength of somebody’s opinion unless and until the trial
court makes itself aware of the facts which form the basis
of that juror’s opinion. The Constitution requires the trial
court to make that determination, therefore the Constitu-
tion must also require the trial court to have sufficient in-
formation before it when he makes that determination.
The only way this can be done is for the trial court to con-
duct an inquiry into the nature and extent of a prospective
juror’s exposure to pre-trial publicity.
In the instant case, Petitioner submitted numerous
newspaper articles concerning the ongoing, statewide Fed-
eral investigation into the Oklahoma County Commissioner
Kickback scandal. Admittedly, Petitioner’s name does not
appear in any of the articles submitted. However, the Pe-
titioner submitted evidence of a scientific survey which indi-
cated that the vast majority of the people in the State of
Oklahoma thought that corruption was widespread through-
out the State in the Office of the County Commissioners in
the State of Oklahoma. Petitioner contends that the article
was prejudicial not only to him but to any person on trial
for an offense which arose out of the Federal investigation.
Common sense again tells us that when the public has been
saturated with news of guilty pleas, resignations and indict-
ments of County Commissioners and suppliers throughout
the State of Oklahoma, that it is not necessary for an indi-
vidual to be singled out in a newspaper item before the
possibility of prejudice to him exists.
Despite all that, the trial court, in conducting Voir
Dire, only asked the jurors whether or not they had heard
==
or read of the ongoing investigation into County Com-
missioners. When almost all of the prospective jurors re-
sponded that they had read or heard of the investigation,
the trial court simply asked them whether or not they could
lay aside what they had read or heard and base their opirr-
ion on the evidence presented in open court. Petitioner
contends that although each juror was probably sincere
when they said they could be fair and impartial, that the
psychological impact which required that declaration be-
fore the fellow jurors was the father of that declaration.
Petitioner contends that the trial court committed a
fundamental error when it refused to inquire into the na-
ture and extent of each juror’s exposure to pre-trial pub-
licity. Since the trial court did not have adequate informa-
tion before it to fulfill its constitutional duty to assess the
strength of juror’s opinions and impressions, or to assess
whether or not a juror had even formed an opinion or had
an impression of the case, the trial court failed in its con-
stitutional duty to assure the Petitioner of due process and
did not uphold his right to a fair trial before a panel of
impartial, indifferent jurors.
on
Il. THE TENTH CIRCUIT COURT OF APPEALS’ HOLD-
ING THAT THE MAILINGS OF THE WARRANTS AND
INVOICES WERE FOR THE PURPOSE OF EXECUTING
THE SCHEME TO DEFRAUD IS IN DIRECT CONFLICT
WITH THIS COURT’S DECISION IN PARR vy. UNITED
STATES, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277
(1960).
To demonstrate this argument, Petitioner will analyze
his case similar to the way this Court analyzed the Parr
case by examining the indictment, the evidence adduced
and the issues of fact tried and submitted to the jury.
As noted earlier the indictment charged Petitioner with
devising a scheme to defraud the citizens of Murray County
of their right to have said county’s business conducted hon-
estly and impartially, free from corruption and undue infl-
ence. The substance of the scheme was that Petitioner, in
his official capacity as County Commissioner, would order
and purchase materials and supplies from various vendors
listed in the indictment. That it was further a part of
said scheme that Petitioner, as a member of the Board of
County Commissioners, would vote to approve said pur-
chases, thereby causing the County Clerk’s Office to en-
cumber funds and thereafter send a county warrant to the
vendor as payment for the materials supplied. The indict-
ment further alleged the warrants were sent through the
United States Mails. To complete the scheme, the vendor
would pay Petitioner a kickback in cash in return for Pe-
titioner’s doing business with the particular vendor. The
indictment alleged that the mailings of the warrants as
payment for the materials purchased were for the purpose
of executing the scheme to defraud and the govrenment
relies on these mailings to establish federal jurisdiction.
an
The indictment charged Petitioner with 38 counts of
mail fraud. Several counts adopted by reference allega-
tions of other counts and merely changed the warrant num-
_ber, or invoice, amount of money paid and date of mailing.
The evidence at trial showed Petitioner, as one of
three (3) County Commissioners in Murray County, was,
among other things, responsible for building and maintain-
ing roads and bridges in his district. To carry out this
duty, he was required to purchase equipment, materials
and supplies.
During the times relevant to Petitioner’s indictment,
county governments in Oklahoma were required to follow
a certain procedure when purchases involving expenditure
of county funds were made. Specifically, the Board of
County Commissioners (the three (3) member governing
body of the county) would advertise for bids on road and
bridge building and maintenance materials and supplies.
Those interested in doing business with the county were re-
quired to submit a written bid, listing the prices they would
charge for certain items over a six (6) months period of
time. The bids are open at a public, open meeting and are
received and kept by the County Commissioners and County
Clerk’s Office. The lowest and best bid is the one accepted
and all purchases for the next six (6) months must be made
at that bid price. However, the county is free to purchase
from any vendor so long as they meet the low bid price.
The Government’s case featured the testimony of sev-
eral vendors of road and bridge building materials and sup-
plies. Each testified that they paid Petitioner a kickback
each time he, as County Commissioner, ordered and pur-
chased materials, supplies or equipment from the vendor's
—
company. The kickback was always paid in cash. For ob-
vious reasons, there were never any witnesses to the ex-
change. The amount of kickback paid varied with each
purchase, but was usually ten (10) per cent of the purchase
price of the particular order.
The witnesses did not specify when any of the kick-
backs were paid. They did not say they were paid either
before or after the warrant or invoice was mailed. How-
ever, they were certain that a kickback was paid on every
transaction listed in the indictment.
The warrants and invoices which the indictment charged
were “caused” by Petitioner to be placed in the mail were
all offered and received in evidence. Each warrant con-
tained the name of the payee, the amount of payment, the
date and the signatures of the Chairman of the Board
of County Commissioners, attested by the signature of the
County Clerk. The invoices simply described what items
were to be purchased by the county and the price of each
item They were, simply put, routine business invoices.
To see what theories and issues of fact were submitted
to the jury for their resolution, the charge to the jury must
be reviewed. Relative to the Mail Fraud Counts, the trial
court, after reading the indictment to the jury, read the
vtatute and defined certain terms in the statute. There
was no specific verdict-directing charge as cited in Parr,
supra. In essence, the court simply paraphrased the statute
in its charge to the jury and did not give the broad charge
as the trial court did in Parr, supra.
Petitioner objected to the mail Fraud Charge and sub-
mitted the following requested instructions:
=,
“The law requires the act of using or causing the use
of the United States Mails to be for the purpose of ex-
ecuting the scheme to defraud. If the mails are used
merely as a result of the scheme, then such use of the
mails is not for the purpose of executing such scheme
as required by the federal mail fraud statute.”
“A mailing of a lawful county warrant made or caused
to be made under the imperative command of duty im-
posed by state law is not for the purposes of executing
a scheme to defraud as required by the federal mail
fraud statute, even though the person required to do
the mailing plans to steal or receive some of the pro-
ceeds of the warrant after it is mailed.”
“If you find from the evidence that certain lawful
county warrants were mailed or caused to be mailed
by the defendant, but that the defendant or some other
person was legally compelled to mail or cause to be
mailed the lawful county warrant, then such mailings
are not made for the purposes of executing a scheme
as required by the federal mail fraud statute.”
The indictment charged and the evidence terded to
show the Petitioner over a period of several years de-
frauded the taxpayers of Murray County to their right to
have county government run openly and honestly by ac-
cepting bribes in return for doing business with certain
vendors. But Petitioner contends that accepting a kickback
is essentially a State crime (See Anti Kickback Act of 1974,
74 O.S. § 3404), and could become violations of the Mail
Fraud Statute only if the mailings of the warrants and
invoices were in execution of the alleged kickback scheme.
Petitioner's position is virtually identical to that taken
by the Petitioners in Parr, supra. Oklahoma law establishes
the Board of County Commissioners as the governing body
a
of the county 19 O.S. § 3. The purchases made for materials
and supplies were not illegal or unlawful. They were made
pursuant to the statutory duty imposed on the Commission-
ers. The warrants sent to the vendors were for the same
amount as the invoice submitted to the county. There was
some evidence that suppliers who paid kickbacks “padded”
their bids or built the kickback into the bid, but the evi-
dence failed to show that Petitioner ever bought any item
at an “inflated” price. Additionally, no such “padded in-
voice” theory was submitted to the jury.
Once an invoice was approved by the Board of County
Commissioners, State law required the Board to order a
warrant to be “issued” as payment for that invoice. 19
O.S. § 347. The only practical way to get the warrant to
the vendor was through the United States Mail. Thus, Pe-
titioner contends he was legally compelled to cause the war-
rants to be issued and mailed. Therefore, Petitioner con-
tends the stututory method of payment triggered the use
of the mails, and that the mails were therefore not made
for the purpose of executing the scheme to defraud. War-
rants were issued as payment for all claims upon the county.
The mails were used whether a kickback was paid or not.
Although the mails may have been used as a result of the
scheme, that is not sufficient to say the mails were used for
the purpose of executing the scheme to defraud. United
States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603
(1974).
The Tenth Circuit Court of Appeals held that Peti-
tioner’s reliance on Parr was misplaced “because it neces-
sarily rests on his view of the vendors as outsiders rather
than as the participants they were. United States v. Prim-
="
rose, 718 F.2d 1484 (1983). The Court of Appeals stated
that Parr was inapplicable because the scheme included
the vendor’s receipt of county business as well as the re-
ceipt of kickbacks and that although Primrose was required
to purchase materials and supplies, he was not required
to purchase from those who paid kickbacks. Id. at 1491.
The Court then concluded, “In sum, causing the mails to
be used so that the county would pay the vendors who had
paid kickbacks constitutes a violation of the Mail Fraud
Statute ... The warrants mailed . .. were each in further-
ance of the fraud within the meaning of the Mail Fraud
Statute.” Ibid.
Petitioner strongly contends that the Court of Appeals
has fundamentally misconstrued this Court’s holding. The
focus of the Parr decision seems to be that the mailings
were not triggered by the scheme to defraud, Lut were
made pursuant to a duty imposed upon the Petitioners by
state law. The mailings in the instant case were also caused
to be made by the statutory scheme for payment of county
claims. As noted earlier, warrants were required to be
issued as payment for all claims against the county. Thus,
the mails were used for the purpose of fulfilling Petitioner’s
statutory duty rather than for the purpose of executing a
scheme to defraud.
The Court of Appeals apparently reasoned that the
mailings here were not legally compelled because the war-
rants were sent to those who paid kickbacks to Petitioner
and it was illegal for Petitioner to accept kickbacks. Thus,
the particular mailings, the Court of Appeals states, were
not duty bound and were only made to carry out the steps
in the scheme to defraud.
=
The Court of Appeals apparently relied on the dicta
in Parr, appearing at 363 U.S. 387, 80 S.Ct. at 1121, wherein
this Court stated:
“But petitioner’s counsel concede that if such secretary,
clerk or ceshier—or similarly a member of a School
Board—improperly ‘pads’ or increases the amounts of
the statements and causes them to be mailed to bring
in a fund to be looted, such mailings, not being those
of the employer (or School Board), could not be duty
bound or legally compelled and would constitute an
essential step ‘for the purpose of executing (a) scheme
to defraud.’ ”
However, the Court of Appeals overlooks the fact that
the issuance of the warrants resulted from the purchases
made by Petitioner, none of which were charged or shown
to have been unlawful.
In other words, the warrants would have been mailed
regardless of the payment or receipt of a kickback. Just as
in Parr, tiie mailings were to be made regardless of whether
the Petitioner embezzled the money sent in.
If Petitioner had “padded” the amount of the warrant
to create a “fund to be looted” or had paid an “inflated”
price for the specific item, then Parr would be inapplicable.
However, this issue was not charged in the indictment nor
was it submitted to the jury. Admittedly, some vendors
testified that bids were “padded” because of kickbacks, but
the record does not show Petitioner caused a single war-
rant to be mailed that could be said to be payment for any
materials or supplies that were bought at an inflated price.
Petitioner would adopt the argument made bv peti-
tioner’s counsel in Parr, 363 U.S. at 387, 80 S.Ct. at 1181,
5
wherein counsel for petitioner pointed out what would be
the “‘explosively expanded and incongruous results...
(by) making federal mail fraud cases out of the conduct
of a doctor’s secretary or a business concern’s billing clerk
or cashier in mailing out, in the course of duty, the em-
ployer’s lawful statements with the design, eventually exe-
cuted, of misappropriating part of the receipts.’”” The Court
stated it was “happily” not called upon to determine those
analogies.
Petitioner’s case fits in that scenario. The county can
be looked at as a business concern. The warrants are checks
which, like any business, a county must send out to pay
for goods purchased. They are, in fact, required by state
law to issue warrants. The Government seeks to make a
federal mail fraud violation out of the mailing of a check
as payment for goods delivered. The payment of the kick-
back is not related to the mailing of the warrant. At best,
the warrants are mailed as a result of the scheme, but not
for the purpose of executing the scheme, Maze, supra, for
the reason that it cannot be said that warrants mailed or
caused to be mailed under the imperative command of duty
imposed by state law are criminal under the mail fraud
statute, even though those required to do the mailing take
a kickback from the vendor when or after the warrant is
cashed.
The same argument can be made for the mailings of
the invoices. Vendors are required to submit invoices to
the county before they can receive payment. Thus, in ef-
fect, the law requires the invoices to be mailed. The in-
voices in this case were not charged or shown to have been
unlawful or padded. Although the law does not specifically
—,
compel the invoices to be mailed, it does require invoices
to be submitted to the Board of County Commissioners for
approval before a warrant can be issued as payment. In
short, the mailings of the invoices were triggered by state
law and had to be made regardless of the payment or non-
payment of a kickback. At least one Circuit has held that
there is not a
“valid distinction to be drawn between those routine
mailings required by law .::’ those routine mailings,
themselves intrinsically innocent, which are regularly
employed to carry out a necessary or convenient pro-
cedure of a legitimate business enterprise. In either
case the mailings themselves are not sufficiently closely
related to the fraudulent scheme to support a mail
fraud prosecution .. .” United States v. Tarnopol, 561
F.2d 466 (3rd Cir. 1977).
In this case, the invoices are part of the statutory pro-
cedure for payment of claims, and at the same time, routine
business documents used by vendors to get money for goods
delivered. Consequently, Petitioner argues again that al-
though the mailing of the invoices may have resulted from
the scheme they were not in furtherance of the scheme.
CONCLUSION
The Constitution mandates that every criminal accused
receives a fair trial from a panel of impartial jurors. A
trial court has a constitutional duty to empanel such a jury.
In fulfilling that duty, he must evaluate and assess cach
juror’s sworn assurances that he can be impartial and that
he base his verdict only on the evidence presented in court.
When there has been massive, statewide pre-trial pub-
licity surrounding the subject matter of the trial, and that
is properly brought to the trial court’s attention, the trial
— =
court should ask the jurors whether they have read or
heard anything about the subject matter of the trial. If a
juror indicates he has, the trial court, in order to perform
his constitutional function should, before evaluating that
juror’s assurance that he can be impartial, test the strength
of any opinion or impression that juror has formed as a
result of his exposure to pre-trial publicity. Only then can
the trial court properly evaluate a juror’s ability to be im-
partial. Without knowing what publicity a juror has been
exposed to, the trial court has to rely solely upon a juror’s
assurance he can be fair and impartial. However, if the
trial court or defense counsel knew that juror had read
about the subject matter of the trial every day for the past
six (6) months, that person’s assurance of impartiality
would not be accorded so much weight and the defense
may have a proper challenge for cause. However, if the
trial court does not attempt to find out what information
a juror has been exposed to, he does not uphold his con-
stitutional duty to evaluate the strength of a juror’s opin-
ion and also impairs the right of the defense to make a
challenge for cause.
Today’s communications industry brings the events
surrounding trials of important people and issues into the
homes of practically every person in the vicinity of the
trial, and sometimes into the homes of the entire nation.
When cases are highly publicized, it makes the task of se-
lecting a fair and impartial jury a difficult one. However
difficult it may be, though, the Constitution still requires
that it be done.
There is a trend in the Circuit Courts of Appeals to
nct rely solely upon a juror’s assurance that he can be fair
—
and impartial in highly publicized cases. The Constitution
requires the trial court to test the strength of a venireman’s
opinion or impression. The Constitution should require a
trial court, in highly publicized cases, to inquire of the juror,
if he admits exposure to pre-trial publicity, the nature and
extent of his exposure to pre-trial publicity. Then the trial
court can properly evaluate the juror’s assurance that he
can be fair and impartial.
In Petitioner’s case, the subject matter of his trial,
the Oklahoma County Commissioner Kickback scandal, had
been the subject of extensive media coverage. The trial
judge noted in open court that publicity had been consid-
erable. Yet he failed to make proper inquiry into each
juror’s exposure to pre-trial publicity, only asking them if
they had read or heard of the investigation and if they
could then put that aside and base their ruling on the evi-
dence in court. This is the type of questioning most Cir-
cuits have said was insufficient.
Petitioner respectfully requests this Court to hold that
the trial court has the constitutional duty to inquire into
the nature and extent of a juror’s exposure to pre-trial
publicity in cases involving massive and pervasive pre-
trial publicity and to reverse his convictions for the trial
court’s failure to do so in his case.
This Court has held that mailings which are made or
caused to be made under the imperative command of duty
imposed by state law are not for the purpose of executing
a scheme to defraud. The rationale seems to be that it is
the state law, and not the scheme, that triggers the use of
the mail, and federal jurisdiction should not be invoked in
—25—
cases where the use of the mails is, in effect, compelled by
law or made pursuant to a billing procedure of a business.
In those cases, the use of the mails is only a result of, or
collateral to, whatever scheme is alleged. It would be dif-
ferent if the mailings involved padded or unlawful war-
rants or invoices. However, in Petitioner’s case, no such
issue was charged or submitted to the jury.
The analysis of the Tenth Circuit Court of Appeals is
in direct conflict with this Court’s holding in Parr. Pur-
chases would be made and warrants would be mailed to
those vendors whether kickbacks were paid or not. It does
not matter that Petitioner was going to get a kickback from
certain vendors. The law still required a warrant to be
issued when a lawful purchase was made. Since the pur-
chase itself was lawful and since the purchase, not the
kickback, triggered the use of the mails, Petitioner contends
this Court should reverse his convictions on the mail fraud
counts.
Respectfully submitted,
GENE STIPE
Counsel of Record
ANTHONY M. LAIZURE
Stipe, Gossett, Stipe, Harper, Estes,
McCune and Parks
323 East Carl Albert Parkway
Post Office Box 1368
McAlester, Oklahoma 74502
(918) 423-0421
Attorneus for Petitioner
April, 1984
APPENDICES
APPENDIX A
PUBLISH
(Filed Sept. 30, 1983]
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA, )
Plaintiff-Appellee, )
v. ) No. 82-1842
)
)
)
JIMMIE HAROLD PRIMROSE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 82-5-CR)
Gene Stipe (Anthony M. Laizure with him on the brief)
of Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks,
McAlester, Oklahoma, for Defendant-Appellant.
Gary L. Richardson, United States Attorney (Edward M.
Kimmel, Assistant United States Attorney, with him on the
brief), Muskogee, Oklahoma; for Plaintiff-Appellee.
Before HOLLOWAY, McWILLIAMS, and SEYMOUR, Cir-
cuit Judges.
SEYMOUR, Circuit Judge.
Jimmie Harold Primrose was indicted on thirty-eight
counts of mail fraud, 18 U.S.C. §§ 2, 1341 (1976), and three
cuunts of extortion, 18 U.S.C. § 1951 (1976), in connection
2a
(APPENDIX)
with an alleged scheme to defraud the citizens of Murray
County, Oklahoma. A jury convicted him of thirteen counts
of mail fraud. On appeal, he asserts that: (1) the trial
court erred in not dismissing the indictment for unnecessary
delay in bringing him to trial; (2) the voir dire of jurors
was inadequate; (3) the Government failed to prove a use
of the mails for the purpose of executing a scheme to de-
fraud; (4) the trial court abused its discretion by admit-
ting evidence of crimes not charged in the indictment; (5)
the prosecutor’s references to other county commissioners
were improper and prejudicial; (6) the prosecutor improp-
erly cross-examined defense witnesses; and (7) certain re-
marks the prosecutor made during closing argument con-
stituted improper vouching for witnesses. For the reasons
set out below, we affirm.
I,
BACKGROUND
In setting forth the circumstances giving rise to this
appeal, we view the evidence in the light most favorable
to the jury’s verdict. United States v. Petersen, 611 F.2d
1313, 1317 (10th Cir. 1979), cert. denied, 447 U.S. 905 (1980).
Primrose was elected county commissioner for district 3 of
Murray County in 1969, and was re-elected for successive
terms. In Oklahoma, counties are divided into three dis-
tricts, and each district is represented by an elected com-
missioner. One witness described county commissioners as
the “managers” and “operators” of the county. Rec., supp.
vol. I, at 155. Among other things, they are responsible for
maintaining county roads and bridges, a duty that includes
authority to make purchases of supplies and equipment.
Primrose was charged with defrauding the citizens of
Murray County by purchasing various materials and sup-
plies for the county in exchange for kickbacks from the
vendors, and by placing orders for materials and supplies
3a
[APPENDIX}
that were not to be delivered and splitting with the vendors
the amount paid by the county for the undelivered goods.
The Government's four chief witnesses were vendors who
testified about the alleged kickbacks and “split deals” or
“50-50 splits.”
1 More specifically the indictment charged:
“COUNT 1
"(18 US.C. 1341 and 2)
“1. During the period commencing on or about October 9,
1971, and continuing thereafter to on or about, May 14, 1980,
JIMMIE HAROLD PRIMROSE
the defendant herein, while serving as County Commissioner of Mur-
ray County, Oklahoma, devised and intended to devise a scheme to
defraud the citizens of Murray County by depriving the citizens of
that County of their right to have Murray County's business con-
ducted openly, honestly, and impartially, free from corruption and
undue influence.
“The scheme to defraud the citizens of Murray County was in
substance as follows:
“2. As part of the scheme to defraud, Jimmie Harold Prim-
rose, in his official capacity as County Commissioner of Murray
County, did place orders and purchase road and bridge building and
maintenance materials and supp’ies for Murray County from various
vendors, and in particular, Ernest Leslie Irwin, d/b/a either Indepen-
dent Industries, Inc., or Machinery Parts and Service Co.; Tommy L,
Craft, d/b/a T.L. Craft Road and Bridge Materials; Billy J. Klutts,
d/b/a Okie Equipment Co.; and Edward B. Wilson, d/b/a Wilson
Materials Co., in exchange for which the defendant did receive from
these sellers of road and bridge building and maintenance supplies,
cash kickbacks.
"3. Ie was a further part of the scheme to defraud that the de-
fendant, Jimmie Harold Primrose, in his official capacity as County
Commissioner of Murray County, knowingly did place orders with
various vendors, aud, in particular, Ernest Leslie Irwin, d/b/a Inde-
pendent Industries and Billy J. Klutts, d/b/a Okie Equipment Com-
pany for road and bridge building and maintenance materials and
4a
(APPENDIX)
The first witness, Edward Wilson, had been a salesman
for Long Brothers Materials Co. from 1973 to 1974, then
1 (Continued )
supplies which were not actually to be delivered to the County in
exchange for which Ernest Leslie Irwin and Billy J. Klucts did pay
to the defendant, Jimmie Harold Primrose, in cash, a sum of money
representing approximately 50% of the billed value of the fictitious
ard nonexistent goods which were represented to have been sold to
the County.
“4, That on or about May 24, 1977, in the Eastern Judicial
District of Oklahoma, Jimmie Harold Primrose, the defendant herein,
for the purpose of executing the aforesaid scheme to defraud, and
attempting to do so, did cause to be placed in an authorized mail
depository, to be sent and delivered by the U.S. Postal Service, from
Murray County, Oklahoma, located in the Eastern Judicial District
of Oklahoma to Okie Equipment Company, Meeker, Oklahoma, an
envelope containing County Warrant Number 646, in the amount
of $714.00, all in violation of Title 18 United States Code, Sections
1341 and 2.
Rec., vol. I, at 1-2. Counts 2-7 incorporated the allegations contained in
Count 1 except for the date, warrant number, and amount described in
paragraph 4, listing instead six other warrants addressed to Okie Equip-
ment Co. Counts 8-34 incorporated allegations contained in the first three
paragraphs of Count 1, then charged that Primrose on or about specified
dates, “for the purpose of executing the 2foresaid scheme to defraud, and
attempting to do so, did cause” Independent Industries, Inc. (Counts 8-
23), Machinery Parts and Service Co. (Counts 24-27), and T. L. Craft
Road & Bridge Material (Counts 28-34) “to place in an authorized mail
depository to be sent and delivered by the U.S. Postal Service to Murray
County” envelopes containing specified invoices for specified amounts
“which caused the issuance” of specified county warrants, all in violation
of 18 USC. §§ 2, 1341 (1976). Rec., vol. I, at 3-4. Counts 35-38 al-
leged that Primrose entered into lease-purchase agreements with E. L.
Irwin for which he received kickbacks. Counts 39-41 charged Primrose
with violations of the Hobbs Act, 18 U.S.C, § 1951 (1976).
The jury found Primrose not guilty of Counts 8-27, 31, and 35-41,
and guilty of Counts 1-7, 28-30, and 32-34. Our review is of couse lim-
ited to the 13 counts of which he was found guilty.
5a
(APPENDIX)
had his own firm, Wilson Material Co., from 1974 to 1979.
Wilson testified that he had paid Primrose ten percent cash
kickbacks when Primrose placed orders with him. He also
testified about several “split deals” he had made with Prim-
rose:
“Well, we would just meet and visit and discuss
what we was going to do. And he would say, or I
would say let’s make a deal for, you know, a couple
of hundred, or 150, and then I would just double it.
And then I would go to my books and he would say
put it on a tin horn or put it on lumber. And I would
just figure out the amount it would take to come up
to that total.”
Rec., supp. vol. I, at 253. Wilson would pay Primrose half
the total, bill the county for the goods that he never de-
livered, and receive his warrant (the county’s “check’’) in
the mail.
The three other vendors gave similar testimony. Bill
Klutts, a co-owner of Okie Equipment Co., sold supplies
and equipment to counties from 1977 to 1979. He testified
that “[i]n most all cases there was a ten percent kickback
built right into your price of supplies, tin horns, and lum-
ber, grader blades.” Id. at 308. He identified purchase or-
ders, invoices, and warrants relating to seven transactions
he had had with Primrose. These transactions constituted
Counts 1-7 of the indictment. He testified that he had paid
Primrose at least a ten percent kickback on each trans-
action and that the transaction described in Count 2 “was
probably a split order.” Id. at 318-19. He said that his in-
2 Because he had not done business with Primrose after 1976, Wil-
son's testimony only concerned offenses which could not be prosecuted be-
cause of the five-year statute of limitations. See 18 U.S.C. § 3282 (1976).
The trial judge admitted the testimony with a cautionary instruction that
it was only to be considered to show the existence of a plan or scheme.
See Fed. R. Evid, 404(b).
6a
(APPENDIX)
voices had been mailed to Murray County and that Murray
County had mailed him warrants in payment.
T. L. (“Tommy”) Craft, the owner of T. L. Craft
Materials, Inc., sold bridge lumber and grader blades to
Primrose’s district. He testified to seven transactions, cor-
responding to Counts 28-34, on which he had paid Prim-
rose ten percent kickbacks.* He also testified that he had
paid Primrose kickbacks on twelve other transactions that
were not listed in the indictment‘ and “[m]Jight have split
one or two with him back there.” Id. at 378. Craft stated
that his company’s invoices had been mailed to the county
and the county had mailed its warrants to him.
E. L. (“Cotton”) Irwin, who represented Independent
Industries, Inc., and Machinery Parts & Service Co., also
related his dealings with Primrose. He said that he usually
had paid Primrose a ten percent kickback, although he had
paid a smaller kickback on machinery and also had made
a few “splits” with him.° Irwin stated that his companies
had mailed invoices to the county and had received the
county’s warrants in the mail.
State law requires a notarized statement of noncollu-
sion on every invoice submitted to a county for payment
of $1,000 or more. Each supplier must state “ihat (s)he
3 The jury acquitted Primrose of Count 31, although it found him
guilty of Counts 28-30 and 32-34.
* The judge admitted this testimony only “for the limited purpose of
establishing a plan or scheme,” rec., supp. vol. I, at 374, and gave a cau-
tionary instruction to that effect.
5 The jury acquitted Primrose on Counts 8-27 and 35-38, which were
the mail fraud counts relating to Irwin.
Much of Irwin's testimony related to abount twenty transactions that
were not listed in the indictment. The judge repeatedly cautioned the
jury to consider this testimony and corresponding exhibits “for the limited
purpose of establishing a common plan or scheme.” Rec., supp. vol, |,
at 442; see id. at 457, 461.
7a
[APPENDIX)
has made no payment directly or indirectly to any elected
official, officer or employee of... any county .. . of money
or any other thing of value to obtain payment.” Okla. Stat.
tit. 74, §3109 (1981). Each of the four vendors testified
that he was required to submit such affidavits with his pur-
chase orders and invoices in order to get paid.
The defense presented nineteen witnesses who all said
they never knew Primrose to take kickbacks. Three women
who had done office work for the three Murray County
commissioners testified that Irwin, Klutts, and Craft peri-
odically had come into the county courthouse, sometimes to
deliver invoices, sometimes to pick up warrants, and some-
times to call on the commissioners. The women had never
witnessed kickbacks. One man said he had worked for
Irwin for several years and had never heard anything about
kickbac’xs. Ten vendors testified that they had done busi-
ness with Primrose and had never paid kickbacks nor had
they been asked to do so. Two mechanics for Primrose’s
district testified that certain equipment that Irwin testified
had not been delivered in fact had been installed on a
county bulldozer. Three witnesses said Primrose had a good
reputation for honesty. Finally, Primrose himself testified
that he had never taken kickbacks and, on the contrary,
had stopped doing business with Klutts when offered a kick-
back.
II.
PRE-TRIAL DELAY
Primrose was indicted November 19, 1981, on thirty
counts of mail fraud and one count of extortion. On De-
cember 31 the Government gave Notice of Dismissal of the
indictment. The trial court granted the Government leave
to dismiss on January 4, 1982, the date the case was origi-
nally scheduled to go to trial. See Fed. R. Crim. P. 48(a).
Three days later a second indictment was returned against
Primrose, charging him with thirty-eight counts of mail
fraud and three counts cf extortion. Primrose was ar-
8a
[APPENDIX]
rainged and trial was set for March 1. Primrose moved to
dismiss the second indictment under Federal Rule of Crimi-
nal Procedure 48(b) on the ground of unnecessary delay.
Primrose appeals the district court’s denial of this motion.
He does not, however, allege any violation oi the Speedy
Trial Act, 18 U.S.C. $$ 3161-3174 (1976), of the speedy trial
clause of the Sixth Amendment, or of the due process clause
of the Fifth Amendment.
Rule 48(b) provides:
“If there is unnecessary delay in presenting the charge
to a grand jury or in filing an information against a
defendant who has been held to answer to the district
court, or if there is unnecessary delay in bringing a
defendant to trial, the court may dismiss the indict-
ment, information or complaint.”
The rule is applicable only to post-arrest situations. United
States v. Lovasco, 431 U.S. 783, 789 n.8 (1977); United
States v. Marion, 404 U.S. 307, 319 (1971); United States v.
McManaman, 606 F.2d 919, 922 n.5 (10th Cir. 1979). Be-
cause Primrose wes not arrested prior to indictment, Rule
48(b) is inapplicable.
ITI.
VOIR DIRE OF JURORS
Primrose asserts that voir dire in this case was inade-
quate because ail the jurors had read or heard about the
ongoing county commiss:oner investigation. He contends
that the voir dire was not sufficiently broad to permit the
trial court to assess the effect of this publicity on the jurors’
ability to be impartial. He also argues that each juror
should have been questioned individually out of the pres-
ence of other jurors.
We have considered virtually identical arguments in
United States v. Whitt, F.2d __, No. 82-2213 (10th Cir.
1983), filed this date. In Whitt, as in this case, the trial
judge asked general questions regarding the potential
9a
[APPENDIX]
jurors’ exposure to publicity, and then questioned individ-
ual jurors about their ability to be fair and impartial de-
spite what they had heard or read. Based on the authorities
and the analysis set forth in Whitt, we conclude that the
voir dire here was adequate and did not constitute rever-
sible error.
IV
MAIL FRAUD
The mail fraud statute provides:
“Whoever, having devised or intending to devise
any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent
pretenses, represertations, or promises ... for the pur-
pose of e .ecuting such scheme or artifice or attempting
so to do, places in any post office or authorized deposi-
tory for mail matter, any matter or thing whatever to
be sent or delivered by the Postal Service, or takes or
receives therefrom, any such matter or thing, or know-
ingly causes to be delivered by mail according to the
direction thereon, or at the place at which it is directed
to be delivered by the person to whom it is addressed,
any such matter or thing, shall be fined not more than
$1,000 or imprisoned not more than five years, or both.”
18 U.S.C. § 1341 (1976) (emphasis added). Primrose ar-
gues that, even assuming the Government showed mailings
and the existence of a scheme to defraud, the mailings al-
leged were insufficiently related to the purported scheme
to sustain his convictions. The question before us, then, is
whether the county’s mailings of warrants to Klutts, and
Craft’s mailings of invoices to the county, were for the
purpose of executing a scheme to defraud.®
® Primrose was convicted on Counts 1-7, which were based on the
warrants mailed to Klutts, and Counts 28, 29, 30, 32, 33, and 34, which
were based on invoices mailed by Craft. See note 1 supra. The mailings
in the Wilson and Irwin transactions did not result in convictions, and
are therefore not before us on appeal.
10a
[APPENDIX)}
“The federal mail fraud statute does not purport to
reach all frauds, but only those limited instances in which
the use of the mails is a part of the execution of the fraud.”
Kann v. United States, 323 U.S. 88, 95 (1944). However,
“filt is not necessary that the scheme contemplate the use
of the mails as an essential element.” Pereira v. United
States, 347 U.S. 1, 8 (1954).
Primrose argues that because the mailings alleged in
the indictment occurred after the kickbacks were paid,
they could not be for the purpose of executing the scheme
inasmuch as the scheme would have already reached fru-
ition. Primrose’s view of the scheme is too narrow. His
argument rests on limiting the scheme to his receipt of kick-
backs. In fact, however, the scheme to defraud the citizens
of Murray County necessarily included the vendors’ receipt
of payment from the County: the scheme could not reach
fruition before that occurred.
United States v. Bottom, 638 F.2d 781 (5th Cir. 1981),
involved a scheme strikingly similar to that in the instant
case. The defendant commissioners raised the same argu-
ment Primrose does here, but the court rejected it:
“Concerning the next issue as to the sufficiency of
the evidence to prove mail fraud, the defendants argue
that the scheme was complete once they received their
money from Baldwin, which occurred up-front before
Baldwin submitted his invoices to the county, before
the county submitted checks to Baldwin, and before
the commissioners initialed copies of the checks; and
that if the scheme was complete, then the mailings
were not sufficient to bring the transactions within
the scope of the maii fraud statute. The defendants
rely on United States v. Maze, 414 U.S. 395, 94 S.Ct.
645, 38 L.Ed. 603 (1974).
“
“The fraudulent scheme in the instant case em-
ployed mailings which were integral to the execution
lla
[APPENDIX)}
of the fraudulent plans and which were not made after
the fruition of the fraud but were necessary to com-
plete the scheme. The scheme was not complete when
Baldwin paid the defendants ‘up-front’ the bogus or
padded amounts in the invoices because Baldwin still
needed the assistance of the defendants, who were the
only ones who knew about the fraud and who had con-
trol of all the paperwork in their districts, to initial
copies of the checks which reflected payment of the
phony invoice attached to it. Furthermore, the county
was not defrauded and the scheme complete until the
checks were approved by the commissioners, the money
released and the checks mailed to Baldwin. From the
beginning of the scheme the defendant commissioners,
who knew that the invoices were bogus or padded,
were also aware that Baldwin would be paid by a
check mailed to him by the county. Therefore, in this
case, the mailing of the checks was an essential step
integral to the completion or fruition of the scheme.”
Id. at 785-86.
In United States v. Boyd, 606 F.2d 792 (8th Cir. 1979),
the defendant, a director of two projects receiving federal
grants, demanded that a consultant kick back a portion of
his consulting fees. The mailings involved were grant re-
quests sent by Boyd and by a state agency on behalf of his
organizations. The court stated:
“One element of the continuing kickback scheme was
the repeated financing of the various projects Boyd
controlled. Continued receipt of grant monies which
Boyd could pay out to [the consultant] as consulting
fees was necessary to perpetuate and carry out this
continuous scheme. Conduct is within the mail fraud
statute when, as in this case, the use of the mails for
the purpose of executing the fiow of payoff funds is a
reasonably foreseeable possibility in furthering the
transaction, especially when the scheme continues and
repeats over an extended period of time.”
12a
[APPENDIX]
Id. at 794. Here, the mailings of invoices and warrants en-
sured that the vendors got paid, which was an essential part
of the scheme. See also United States v. Grande, 620 F.2d
1026, 1029-30 (4th Cir.) (mailings of notice to proceed, pay-
ment, and bill relating to fraudulently obtained demoli-
tion contract), cert. denied, 449 U.S. 830, 919 (1980); United
States v. Diggs, 613 F.2d 988, 998-99 (IC. Cir. 1979) (mail-
ing of congressional employees’ paychecks, out of which
defendant was paid kickbacks), cert. denied, 446 U.S. 982
(1980). We conclude that the mailings at issue here are
sufficient to bring the scheme within the mail fraud statute.
In this case, some invoices submitted by Craft included
an affidavit of noncollusion, which is required by state law
to be attached to all invoices in excess of $1,000. These
mailings served the further purpose of preventing discovery
of the scheme. In United States v. Sampson, 371 U.S. 75
(1962), the indictment alleged a scheme in which the de-
fendants “purported to be able to help businessmen obtain
loans or sell out their businesses.” 371 U.S. at 77. After
the victims submitted their applications accompanied by
application fees, the defendants allegedly mailed them “the
accepted application together with a form letter... ‘for the
purpose of lulling said victims by representing that their
applications had been accepted and that the defendants
would therefore perform for said victims the valuable serv-
ices which the defendants had falsely and fraudulently rep-
resented that they would perform.’” Id. at 78 (quoting
indictment). The district court dismissed the indictment,
reasoning, on the authority of Kann, 323 U.S. 88, and Parr
v. United States, 363 U.S. 370 (1960), that no offense was
charged because the mailings were after the defendants
received their money and hence could not have been for
th purpose of executing the scheme. The Supreme Court
reversed, holding that the subsequent mailings for the pur-
pose of convincing the victims of the scheme that they
had not been defrauded are “ ‘for the purpose of executing’
a scheme within the meaning of the mail fraud statute.”
13a
[APPENDIX)
Id. at 81. See also U.S. v. Curry, 681 F.2d 406 (5th Cir.
1982); Sparrow v. United States, 402 F.2d 826, 829 (10th
Cir. 1968) (“lulling” letter). The vendors’ false affidavits
in this case helped to conceal Primrose’s kickback scheme.
Primrose cites United States v. Maze, 414 U.S. 395
(1974), Kann, 323 U.S. 88, and United States v. Wolf, 561
F.2d 1376 (10th Cir. 1977), in support of his argument that
mailings after a defendant receives the fruits of a fraud are
not for the purpose of executing the fraud. “Kann and
Maze hold merely that under the facts of those cases the
fraudulent schemes had ended before the mailings occurred.
If the scheme continues, mailings made after receipt of the
money can clearly support conviction.” U.S. v. Knight, 607
F.2d 1172, 1175 (5th Cir. 1979). Wolf is similarly distin-
guishable.
Finally, Primrose analogizes the mailings of invoices
and warrants in this case to the mailings involved in Parr
v. United States, 363 U.S. 370 (1960). Parr concerned the
misappropriation of a school district’s funds by members
of the school board, its secretary, its attorney, and certain
bank officers. The mailings related to the assessment and
collection of taxes, duties assigned to the school board by
the state constitution and statutes. In the absence of any
showing “that the taxes essessed and collected were ex-
cessive, ‘padded’ or in any way illegal,” id. at 387, the Court
concluded:
“(I]t cannot be said that mailings made or caused to
be made under the imperative command of duty im-
posed by state law are criminal under the federal mail
fraud statute, even though some of those who are so
required to do the mailing for the District plan to
steal, when or after received, some indefinite part of
its moneys.”
Id. at 391. Primrose likens his situation to that in Parr:
“Primrose was compelled by state law to purchase ma-
terials, supplies and equipment for his district. The
l4a
(APPENDIX)
Board of Ccunty Commissioners was compelled by
state law to issue the warrants for payment of goods
purchased for a county purpose. The warrants intro-
duced at trial were not shown to have been padded or
unlawful in any way, nor did the indictment so allege.
No such issue regarding padded invoices was submitted
to the jury. Lastly, although the law did not compel
the County Clerk to mail the warrants, the law obli-
gated the County to issue warrants in payment of
County obligations and in effect, caused the County
Clerk to use the mails.”
Brief of Appellant at 45.
Primrose’s reliance on Parr is misplaced because it
necessarily rests on his view of the vendors as outsiders
rather than as the participants they were. If the scheme
is properly viewed as including the vendors’ receipt of
county business as well as Primrose’s receipt of kickbacks,
the analogy to Parr breaks down. Primrose may have been
legally required to purchase supplies, materials, and equip-
ment, but he was not required to purchase them from
vendors who paid him kickbacks. In fact he was required
not to accept kickbacks. See Anti-Kickback Act of 1974,
Okla. Stat. tit. 74, § 3404 (1981).
In sum, causing the mails to be used so that the county
would pay the vendors who had paid kickbacks constitutes
a violation of the mail fraud statute. The argument is even
stronger in the case of the “50-50 splits” because a county
commissioner’s duties clearly do not include ordering goods
that are not to be delivered. The warrants mailed to Klutts
and the invoices mailed by Craft were each in furtherance
of the fraud within the meaning of the mail fraud statute.
15a
[APPENDIX]
¥.
OTHER ACT EVIDENCE
Primrose contends that the trial court should have ex-
cluded evidence of transactions not charged in the indict-
ment because such evidence was “cumulative at best, and
prejudicial at worst.” Brief of Appellant at 37. He argues
that this evidence was unnecessary to prove the existence
of a scheme to defraud, which the Government should have
been able to show by proving the thirty-eight charged
counts. He asserts that evidence of forty-five kickbacks
outside the five-year limitations period was highly pre-
judicial.
A trial court has broad discretion to determine whether
the probative value of evidence outweighs the risk of pre-
judice. See Fed. R. Evid. 403;7 see also United States v.
Franklin, 704 F.2d 1183, 1187 (10th Cir. 1983). Rule 404(b)
of the Federal Rules of Evidence provides:
“Evidence of other crimes, wrongs, or acts is not ad-
missible to prove the character of a person in order to
to show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
Under this Rule, the trial court admitted testimony and
documentary evidence of Primrose’s dealings with Wilson,
a salesman and vendor, and some of his dealings with
vendors Craft and Irwin.
7 Rule 403 provides:
“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence.”
Fed. R. Evid. 403,
16a
(APPENDIX)
In a factually similar case, involving an Arkansas road
commissioner taking kickbacks, the Eighth Circuit upheld
the admission of such evidence.
“The fact that a number of the overt acts performed in
furtherance of the conspiracy were committed beyond
the statute of limitations does not preclude the ad-
mission in evidence of such acts to show the nature
of the scheme and [the commissioner’s] intent when
the later use of the mails occurred.”
United States v. Scott, 668 F.2d 384, 387 (8th Cir. 1981);
see also United States v. Adcock, 558 F.2d 397 (8th Cir.),
cert, denied, 434 U.S. 921 (1977).
We find these cases persuasive. The indictment here
alleged the existence of a scheme for a period before the
overt acts charged. The trial court did not abuse its discre-
tion in admitting evidence of Primrose’s other dealings.
See United State v. Lea, 618 F.2d 426, 431-32 (7th Cir.)
(testimony that defendant solicited kickbacks from broker
not in indictment), cert. denied, 449 U.S. 823 (1980); United
States v. Reece, 614 F.2d 1259, 1262 (10th Cir. 1980) (evi-
dence of defendants’ kickback scheme with meat broker
admissible in mail fraud trial for two similar schemes) ;
United States v. Walton, 552 F.2d 1354, 1365 (10th Cir.)
(evidence of sixth check in prosecution for interstate trans-
portation of five stolen checks), cert. denied, 431 U.S. 959
(1977); but see United States v. O’Connor, 580 F.2d 38, 42
(2d Cir. 1978) (error to admit evidence that defendant meat
inspector took bribes at three plants not charged in indict-
ment).
The court instructed the jury to consider evidence con-
cerning offenses and conduct not charged in the indictment
“for the limited purpose or purposes of establishing intent,
motive, knowledge, plan, [or] absence of mistake or acci-
dent... .” Rec., supp. vol. II, at 843. The court also gave
a cautionary instruction each time such evidence was ad-
mitted. We find no abuse of discretion.
17a
(APPENDIX)
VI.
PROSECUTORIAL MISCONDUCT
A. Reference to Other County Commissioners
The prosecutor briefly questioned four witnesses about
Jimmy Frazier and Bird Lance, Jr,. the two other commis-
sioners for Murray County. Frazier had pled guilty and
Lance had been found guilty of charges similar to Prim-
rose’s. Primrose asserts that these references were im-
proper and prejudicial and denied him his right to a fair
trial.
The first such references came during the redirect ex-
amination of Klutts. During cross-examination, Primrose’s
counsel had asked Klutts whether he “did business with
other county commissioners in Murray County after Janu-
ary of '78” (when he last did business with Primrose). Id.,
supp. vol. I, at 348. The prosecutor then asked Klutts the
names of these county commissioners and elicited testimony
that he had paid kickbacks to Frazier and Lance. The trial
court found that this was proper redirect because defense
counsel had opened the door on cross. We find no abuse of
discretion,
The three other references occurred during the pro-
secutor’s cross-examination of defense witnesses. Clarence
Knight, who had testified to Primrose’s good reputation in
the community for being an honest, law-abiding citizen,
was esked about Frazier's and Lance’s reputations. The
court sustained defense counsel's objections when the pro-
secutor asked whether their reputations had changed re-
cently. Otis Saunders also testified to Primrose’s good rep-
utation. During cross-examination, he said that his com-
pany also did business with Lance and Frazier and that
they both had good reputations. Finally, Bobby Riddle,
who had said that Primrose had a good reputation, was
asked if his company did business with the other commis-
sioners and what their reputations were. This time the
court sustained defense counsel's objection and that line
18a
(APPENDIX)
of questioning was stopped. From our examination of the
record, we are convinced that any error was harmless. See
Fed. R. Crim. P. 52(a).
B. Cross-Examination on Primrose’s Reputation
Primrose contends that the prosecutor improperly cross-
examined three defense witnesses who had testified on di-
rect examination as to Primrose’s good reputation for hon-
esty and integrity in the community.
The prosecutor asked each witness to speculate on
what Primrose’s community reputation would be if people
knew he was guilty of taking kickbacks. In United States
v. Polsinelli, 649 F.2d 793 (10th Cir. 1981), we held it im-
proper for the Government to ask such questions because
they are based on the assumption that the defendant is
guilty of the very crimes for which he is being tried. See
also U.S. v. Candelaria-Gonzales, 547 F.2d 291 (5th Cir.
1977). In this case, however, no objection was made below
to the questioning now raised as error. Accordingly, we
may reverse on this ground only if it constitutes plain error
affecting substantial rights. Fed. R. Crim. P. 52(b). In mak-
ing this determination we must assess whether the verdict
was substantially swayed by the error. Kcotteakos v. United
States, 328 U.S. 750, 765 (1946); United States v. Baez, 703
F.2d 453, 455-56 (10th Cir. 1983). In view of the abundant
evidence of guilt in the record as a whole, we conclude that
reversal is not’ required.
C. Vouching for Witnesses
Primrose asserts that the prosecutor vouched for the
Government's witnesses in his closing argument. This court
has repeatedly condemned personalized vcuching for the
integrity of government witnesses. See, e.g., United States
v. Beckman, 662 F.2d 661, 662 (10th Cir. 1981); United
States v. Carleo, 576 F.2d 646, 851-52 (10th Cir.), cert. de-
nied, 439 U.S. 850 (1978); United States v. Ludwig, 508
F.2d 140, 143 (10th Cir. 1974); United States v. Martinez,
19a
{APPENDIX}
487 F.2d 973, 977 (10th Cir. 1973). Attorneys may not ex-
press their personal beliefs concerning the evidence or the
witnesses. United States v. Grapp, 653 F.2d 189, 195 (5th
Cir. 1981).
It does not appear from our examination of the tran-
script, however, that the Government did in fact vouch for
the integrity of its witnesses. In his closing argument,
Primrose’s counsel remarked:
“So, one of these desperate individuals turns your name
into the Government and you are prosecuted and you
come to hire me. And I say, well, I'll represent you
but we've got a difficult time because someone is ac-
cusing you and here is what they are saying about you,
they are saying just the two of you are alone together,
no other evidence is available except the desperate per-
son who accused you, his word against your word. How
are we going to defend it? What can we say?”
Rec., supp. vol. II, at 819. It was in response to that argu-
ment that the prosecutor made the remarks about which
Primrose now complains:
“Mr. Stipe made a point that if someone accused
you of taking a kickback what would have to be done.
As the United States Attorney for eastern Oklahoma,
ladies and gentlemen, I believe I can tell you in good
faith that if there is only one person that came in and
told the FBI that Jimmie Primrose took kickbacks from
them, we wouldn't be here today. That isn’t the case,
and you know it.”
Id. at 824. In context these remarks are iittle more than
a reminder to the jury that it had heard more than one
witness testify against Primrose. There was no improper
vouching.
AFFIRMED.
APPENDIX B
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA, )
Plaintiff-Appellee, )
v. ) No. 82-1842
)
JIMMIE HAROLD PRIMROSE, )
Defendant-Appellant. )
PETITION FOR REHEARING
COMES NOW the Appellant, and Petitions this Court
for a Rehearing. In support of his Petition for Rehearing,
Appellant would point out to the Court that is has appar-
ently overlooked or misconstrued certain arguments raised
by Appellant in his Appeal.
Concerning the examination of prospective Jurors, this
Court held that the Voir Dire conducted by the Trial Court
to test the Jurors’ impartiality was not an abuse of discre-
tion and that the nature of the publicity in the County
Commissioner cases did not mandate greater care than was
taken so as to insure impartiality. The Court seemed to
place emphasis on the fact that none of the articles ex-
plicitly dealt with the Appellant alone, and thus distinguish
this case from the Silverthorne case cited by Appellant in
his Brief.
Appellant contends that it was not necessary for the
Pre-Trial publicity to be focused on him alone. The Thrust
and gist of the Pre-Trial publicity as evidenced by the news-
paper articles made part of the record was that there was
massive and widespread corruption among County Com-
missioners and suppliers in the State of Oklahoma. In fact,
the scientific survey submitted into the record by the Ap-
pellant, indicated that over ninety-four (94) per cent of the
people in the State of Oklahoma were aware of the Federal
2b
(APPENDIX)
investigation into County Commissioner kickbacks and that
over sixty-two (62) per cent of the people of the State of
Oklahoma felt that there was widespread corruption among
County Commissioners. This information alone should have
put the Trial Court on notice that there would be people
on the prospective Jury Panel with pre-formed opinions.
Yet the Trial Court failed to conduct a very searching Voir
Dire to discover whether there were any persons on the
Panel with pre-formed opinions. The Trial Court, as does
this Court, concluded that the Voir Dire was sufficient be-
cause each Juror assured the Court that they could be fair
and impartial.
The Court has thus overlooked the thrust of the hold-
ing in the recent case of United States vy. Blanton, 700 F.2d
298 (6th Cir. 1983). The Blanton case was incorporated into
all the County Commissioner briefs and arguments by way
of subsequent letter to this Court. The Sixth Circuit con-
cluded from a survey of cases from nearly every Circuit
that perhaps not so much deference should be given to a
Juror’s assessment of his own impartiality. The Blanton
case involved a public figure and substantial Pre-Trial pub-
licity, as does the instant case. As in the instant case, the
Trial Court in Blanton failed to inquire into the nature and
extent of the Jurors’ exposure to Pre-Trial publicity. The
Court found that the Voir Dire conducted by the Trial Court
was not sufficient to determine the percentage of the venire-
ment who had a preconceived opinion and was further in-
sufficient to determine the strength of the opinions, despite
the assurances by the Jurors that they could be fair ance
impartial.
Appellant contends that the assurances of a Juror that
he can be fair and impartial should not be afforded much
deference in cases of substantial Pre-Trial publicity. That
at a minimum, a Trial Court should at least inquire into
the extent and sources of a Juror’s exposure to Pre-Trial
publicity. Only then will Counsel for Defendants be able
to adequately assess a Juror’s impartiality, and then intel-
3b
(APPENDIX)
ligently exercise pre-emptory challenges and challenges for
cause.
Appellant contends that his case was a proper one for
a more searching Voir Dire. He was a County Commis-
sioner in the State of Oklahoma at the time of Trial. There
had been widespread and massive publicity about the Fed-
eral investigation into the so called kickback scandal in-
volving County Commissioners in the State of Oklahoma.
Evidence was introduced through Pre-Trial Motions that a
majority of the people in the State of Oklahoma thought
there was widespread corruption among County Commis-
sioners. The fact that the Appellant was not named spe-
cifically in these articles should not be determinative of this
issue, for the reasons heretofore cited.
WHEREFORE, the Appellant respectfully requests this
Court to grant a Rehearing on the issue of adequacy of the
Trial Court’s Voir Dires so that he may further advance
the arguments cited in this Petition for Rehearing.
Appellant further contends that this Court has mis-
construed the Supreme Court’s holding in the Parr case.
The Court distinguishes Parr from the instant case appar-
ently because the persons who did the mailing in Parr were
not participants in the scheme. The Court states that the
Appellant’s reliance on Parr is misplaced because it rests
on his view of the ve idors as outsiders rather than as par-
ticipants in the schen e. The Court states that if the scheme
is properly viewed :\s including the vendor's receipt of
County business as wll as the Appellant’s receipt of kick-
backs, then the analogy to Parr breaks down, yet the Court
fails to state why this is so.
Appellant contends that the Parr case is applicable to
the instant case for the reason that the mailings in each
instance are only incidental or collateral to the scheme, and
not for purposes of executing the alleged scheme. The of-
fenses involved in Parr and the instant case are of the type
that should be dealt with by appropriate State law. They
4b
{APPENDIX}
involve local officials misappropriating local funds. The
mails are not used to further the scheme to defraud nor
are they used to delay the detection of the scheme to de-
fraud. The fraud is executed when the County Commis-
sioner and the vendor meet and agree that a kickback
should be paid. That meeting of the minds is the gist of
the offense. How that fraud is achieved or carried out is
only a collateral matter. This type of scheme is unlike the
typical mail fraud scheme wherein the mails are used to
initiate or execute the fraud itself. In this case, the fraud
is executed without the use of the mails. The mailing of
the County Warrants or Invoices had no real affect on this
scheme for the reason that the scheme could have just as
easily taken place if the warrants and invoices had been
picked up by the supplier as they were in many instances.
In conclusion, the Appellant contends this Court has
broadened the mail fraud statute beyond the scope intended
by Congress. It has turned what is essentially a State or
Local offense into a Federal crime. The Supreme Court
has addressed a case similar to the one at bar and has held
that the mailings in questions were not sufficient to invoke
the mail fraud statute.
Appellant respectfully requests this Court to reconsider
its holding in this case and reverse the mail fraud convic-
tions.
WHEREFORE, the Appellant respectfully requests this
Court to grant his petition for Rehearing and to hold fur-
ther argument in this case or in the alternative to reverse
the convictions on all counts for the above cited reasons
and if necessary, to remand this case to the District Court
for further proceedings.
Respectfully submitted,
JIMMIE HAROLD PRIMROSE,
Defendant-Appellant.
5b
(APPENDIX)
STIPE, GOSSETT, STIPE, HARPER, ESTES,
McCUNE AND PARKS
(s) Anthony M. Laizure
GENE STIPE and ANTHONY M. LAIZURE
Attorneys for Defendant-Appellant
[Address omitted this printing]
APPENDIX C
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JANUARY TERM — February 17, 1984
Before Honorable William J. Holloway, Jr., Honorable Rob-
ert H. McWilliams and Honorable Stephanie K. Seymour,
Circuit Judges.
UNITED STATES OF AMERICA, )
Plaintiff-Appellee. |
Vv. No. 82-1842
JIMMIE HAROLD PRIMROSE,
)
)
)
)
Defendant-Appellant. )
This matter comes on for consideration of appellant’s
petition for rehearing filed in the captioned cause.
Upon consideration whereof, appellant’s petition for re-
hearing is denied.
HOWARD K. PHILLIPS, Clerk
By (s) Robert L. Hoecker
Chief Deputy Clerk
APPENDIX D
PUBLISH
[Filed Sept. 30, 1983]
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 82-2213
JAMES LOUIS WHITT,
aka JIM WHITT,
Nee ee thee
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 82-41-CR)
Gene Stipe, Stipe, Gossett, Stipe, Harper, Estes, McCune &
Parks, McAlester, Oklahoma (Anthony M. Laizure was also
on the brief) for Defendant-Appellant
Gary L. Richardson, United States Attorney, Muskogee,
Oklahoma (Scott Landon, Assistant United States Attorney,
Muskogee, Oklahoma, was also on the brief) for Plaintiff-
Appellee
Before HOLLOWAY, McWILLIAMS and SEYMOUR,
Circuit Judges
HOLLOWAY, Circuit Judge
Defendant-appellant James Whitt brings this timely
appeal from his conviction on thirty counts of mail fraud
and three counts of extortion, 18 U.S.C. §§134] and 1951
2d
(APPENDIX)
respectively. This prosecution was one of many that re-
sulted from an extensive investigation by the F.B.I., the
I.R.S., and the United States Attorneys for Oklahoma. The
focus of the investigation was the payment to some county
commissioners of kickbacks, i.e., bribes, by vendors of equip-
ment and supplies purchased by the counties for road con-
struction, bridge repair, etc.
Defendant Whitt was a county commissioner in Sem-
inole County, Oklahoma. He was charged under the mail
fraud statute, 18 U.S.C. §1341 (and 18 U.S.C. §2, punishing,
as principals, aidors and abettors and those causing an of-
fense to be committed by another person), with defraud-
ing the citizens of Seminole County of their right to have
county government conducted honestly and impartially, and
with using the mails in furtherance of the kickback scheme.
See, e.g., United States v. Mandel, 591 F.2d 1347, 1362 (4th
Cir. 1979), cert. denied, 445 U.S. 961 (1980). Additionally
defendant Whitt was charged with extortion in violation
of the Hobbs Act, 18 U.S.C. §1951, based on his obtaining
the kickbacks “under color of official right,” allegedly ob-
structing or affecting interstate commerce. See, e.g., United
States v. Hall, 536 F.2d 313, 320 (10th Cir. 1976), cert. de-
nied, 429 U.S. 919 (1976).
The government’s witnesses at trial included several
vendors who said they had made illegal payments to Whitt.
Each of these witnesses had made an agreement with the
United States Attorney to testify in exchange for being
allowed to plead guilty to one count of conspiracy to com-
mit mail fraud and to evade taxes, which count was to
include all transactions for which the individual could have
been charged. '!
In his defense, Whitt called several witnesses who testi-
fied to his good reputation in the community. Several ven-
dors who had dealt with Whitt testified that they had never
1 One witness was required to plead to two counts.
3d
(APPENDIX)
made payments to Whitt and that he had never requested
any kickbacks. A former LR.S. agent testified that he had
studied Whitt’s tax returns for the years in question, along
with other financial records provided by Whitt, and had
found no evidence of unreported income. Finally, Whitt
testified in his own defense, denying that he had ever so-
licited or accepted kickbacks.
On appeal, Whitt claims there was reversible error in
that (1) the voir dire examination of prospective jurors by
the trial court was not adequate to assess the jurors’ im-
partiality in view of the voluminous publicity generated
by the county commissioner scandal, and the trial judge
failed to question the jurors individually, outside the pres-
ence of the other jurors; (2) the routine mailings of county
warrants were not made in execution of the alleged scheme
to defraud so as to establish a mail fraud case; (3) the evi-
dence on the extortion counts was not sufficient to estab-
lish the connection with interstate commerce required by
the Hobbs Act; and (4) the trial court erred in instructing
the jury on the depletion of assets theory which was not
alleged in the indictment. We now consider Whitt’s argu-
ments for reversal.
I
The voir dire
Defendant-appellant Whitt asserts that there was re-
versible error in connection with the voir dire. He contends
that the extent of the court’s voir dire of the prospective
jurors was inadequate to test the jurors for impartiality
in light of the extensive pretrial publicity concerning the
county commissioners in the State of Oklahoma.
Whitt notes that all but one juror had read or heard
something about the ongoing county commissioner investi-
gations and claims that the trial court had a duty to inquire
into “the sources, nature and extent of the information each
juror had been exposed to” in order to ascertain the im-
pact of the publicity. (Brief of Appellant at 17). Whitt
4d
(APPENDIX)
says that the voir dire was so limited that the trial court
could not objectively assess the impact of the pretrial pub-
licity on the jurors and thus could not determine whether
or not it affected their partiality. Whitt relies heavily on
Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968),
cert, denied, 400 U.S. 1022, where the court stated “that in
the absence of an examination designed to elicit answers
which provide an objective basis for the court’s evaluation,
‘merely going through the form of obtaining jurors’ assur-
ances of impartiality is insufficient [to test that impartial-
ity].’" Id. at 638 (quoting United States v. Denno, 313 F.2d
364, 379 (2d. Cir. 1963), cert. denied, 372 U.S. £78).
Although Whitt lodged a timely request that defense
and government counsel be permitted to conduct the voir
dire of the jury (I R. 19), the trial court conducted the voir
dire itself as authorized by Rule 24(a) F.R.Crim.P.?- And
it has generally been the practice in this circuit for the
court to ask the questions. United States v. Grismore, 546
F.2d 844, 848 (10th Cir. 1976); United States v. Hall, 536
F.2d 313, 324 (10th Cir. 1976), cert. denied, 429 U.S. 919.
The purpose of the voir dire procedure is to enable the
parties to obtain an impartial jury, Brown v. New Jersey,
175 U.S. 172, 175 (1899); United States v. Crawford, 444
F.2d 1404, 1405 (10th Cir. 1971), and it achieves that pur-
pose by laying “the predicate for both the judge’s and
counsel’s judgment about the qualifications and impartial-
ity of potential jurors. Without an adequate foundation,
counsel cannot exercise sensitive and intelligent peremptory
2 Rule 24(a) F.R.Crim.P. provides:
Examination. The court may permit the defendant or his at-
torney and the attorney for the government to conduct the examina-
tion of prospective 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.
5d
[APPENDIX]
challenges, that suitable and necessary means of ensuring
that juries be in fact and in the opinion of the parties fair
and impartial.” United States v. Baker, 638 F.2d 198, 200
(10th Cir. 1980).
Where there is the possibility or likelihood that poten-
tial jurors have been exposed to prejudicial publicity, they
must be questioned with special care so as to insure that
such publicity did not result in bias. United States v. Hall,
supra, 536 F.2d at 324; Silverthorne v. United States, 400
F.2d 627, 637-38 (9th Cir. 1968), cert. denied, 400 U.S. 1022;
8A Moore's Federal Practice, 124.03 (1982). Our canvas
of the record in this regard is limited by the principle that
voir dire is within the sound discretion of the trial court,
Ristaino v. Ross, 424 U.S. 589, 594-95 (1976), and the court’s
exercise of that discretion will not be disturbed, absent a
clear showing of abuse. United States v. Polk, 550 F.2d 1265,
1267 (10th Cir. 1977), cert. denied, 434 U.S. 838; United
States v. DePugh, 452 F.2d 915, 921 (10th Cir. 1971), cert.
denied, 407 U.S. 920.
Here the trial court asked numerous questions of the
jury array. Before the panel of twenty-eight prospective
jurors was chosen, the court asked the entire venire if any
of them had heard or read of this particular case, three
prospective jurors indicated that they had, and, after fur-
ther questioning of those three, the court excused one of
them because he had already formed an opinion as to the
guilt or innocence of the defendant. (Voir Dire R. 7-8). The
other two indicated that they had not formed an opinion as
a result of hearing or reading about the case. The court
also asked if anyone had not heard of the case, if anyone
was personally acquainted with counsel or the defendant,
3% There are, of course, numerous instances, other than through pre-
trial publicity, where the prejudices of prospective jurors may be aroused
and the trial court should tend to be especially probing during vosr dire.
See, e.g., Ham V. South Carolina, 409 US. 524, 527 (1973) (racial preju-
dice); United States v. Baker, supra, 638 F.2d at n.2.
6d
(APPENDIX)
and whether there was any reason why they may not be
fair and impartial to both sides in the case. (Voir Dire
R. 8-13).
A panel of twenty-eight potential jurors was then seated
and, at the outset, the court determined that all but two
of the twenty-eight had heard or read of the general in-
vestigation into county commissioner practices. (Voir Dire
R. 18-19). The court then asked whether any of the commis-
sioners in the juror’s respective counties had been charged
in connection with the investigation, seven responded af-
firmatively, and the court proceeded to press those seven
as to whether that might influence them in any way. As
a resuit of this questioning, the trial judge asked one po-
tential juror to step down because she responded indeci-
sively to his questions, the judge concluding that she “may
have trouble putting out the decision in another case from
[her] mind.” (Voir Dire R. 20).
The court also asked the panel general questions pro-
pounded in most cases. The potential jurors were asked if
they, or members of their immediate families, were ever
county employees or involved in law enforcement and nu-
merous individuals were questioned about their professions.
Those working in sales or as purchasing agents were sought
out and questioned as to whether or not they had ever been
involved in the type of business transaction alleged in the
instant case and the witness lists of the prosecution and
defense were read aloud to determine if anyone on the
panel was acquainted with any of the witnesses. The court
also asked, at the lawyers’ request, whether any of the
panel served as jurors in another county commissioner pro-
* Only six of the original twenty-eight panel members indicated that
their county commissioner was charged in connection with the investiga-
tion. However, a county commissioner of the replacement for the woman
excused by the court was also involved in the investigation, thus account-
ing for the seventh panel member questioned in this regard. (Voir Dire
R. 21-22).
7d
{APPENDIX}
secution and those who had were further questioned as to
whether the prior case had made an influence on them.
(Voir Dire R. 39-41). Finally, before asking counsel if they
had supplemental questions, the court asked the panel the
following (id. at 43):
Now, I have asked many questions, Ladies and
Gentlemen, and maybe there are some that I should
have asked that I haven’t but I’m going to ask now
for the bottom line question, and then I’m going to call
the lawyers up here. Do any of you, any one of the
twenty-eight of you, know of any reason at all that’s
known to you and unknown to me and unknown to
the lawyers and litigants why you could not be a fair
and impartial juror in this case?
(Emphasis added). None of the panel responded.
Counsel were then asked to approach the bench to
inform the court if they had further questions they wished
the court to ask of the jury. As a result, the court asked
two additional general questions.° We note that, judging
from the substance of the last supplemental question, it
seems that it was suggested by defense counsel, yet it did
not touch on pretrial publicity in any way.*
The questions were (Voir Dire R. 44):
Do any of you have any such close personal friendship with your
Own county commissioner or any other county commissioner in this
state that may bias you in favor of county commissioners as a whole?
None of you do. Thank you.
. + .
Do any of you feel that your own county commissioner has not
done a good job; that they don’t come out and grade the roads and
keep them in proper order so you can get to your farm or your home
or whatever? Just done a bum job generally, and you think they're
all bad. Any of you fall into that category? None of you do,
® All challenges were exercised off of the record. (Voir Dire R. 47).
8d
[APPENDIX]
Though the trial court’s voir dire questions were not
as probing or as detailed as Whitt desired, we find no abuse
of discretion or prejudicial error. In Irvin v. Dowd, 366
U.S. 717 (1961), a case of extreme prejudicial pretrial pub-
licity about a defendant charged in six murders, the Court
said (id, at 722-23):
It is not required, however, that the jurors be to-
tally ignorant of the facts and issues involved. In these
days of swift, widespread and diverse methods of com-
munication, an important case can be expected to
arouse the interest of the public in the vicinity, and
scurcely any of those best qualified to serve as jurors
will not have formed some impression or opinion as
to the merits of the case. This is particularly true in
criminal cases. To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an
accused, without more, is sufficient to rebut the pre-
sumption of a prospective juror’s impartiality would
be to establish an impossible standard. It is sufficient
if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in
court. (Citations omitted).
We do not feel that the tenor of the pretrial publicity
shown by the record in this case was such that the care
demonstrated by the trial court was inadequate. “[S]imply
because a prospective juror admits having read newspaper
accounts relative to a criminal charge is not in itself suffi-
cient grounds for excusing a juror.” United States v. Lamb,
575 F.2d 1310, 1315 (10th Cir. 1978), cert. denied, 439 U.S.
854. We have reviewed the numerous newspaper exhibits
relied on by Whitt from a companion case, United States v.
Boston, No. 82-1323, F.2d _... (10th Cir. 1983), decided
today. We note that none of the articles explicitly deals
with Whitt. Indeed, several of them indicate that many
county commissioners were not involved in the kickback
scandal.
9d
[APPENDIX)
Thus we feel there is a distinction between the instant
case and Silverthorne v. United States, 400 F.2d 627 (9th
Cir. 1968), cert. denied, 400 U.S. 1022, on which Whitt relies,
where the defendant alone was subject to massive and often
virulent publicity prior to trial.? Here, the news reporting
was not specifically focused on Whitt, nor malicious. See
United States v. DePugh, 452 F.2d 915, 921 (10th Cir. 1971),
cert. denied, 407 U.S. 920. All of the jurors that remained
on the panel responded that, although they may have read
or heard of the county commissioner probe or this case,
they did not have an opinion either way—and those with
pre-formed opinions were excused by the court. See United
States v. Hall, supra, 536 F.2d at 325 & n.9. We conclude
that the voir dire conducted by the court to test the jurors’
impartiality was not an abuse of discretion and that the
nature of the publicity here did not mandate greater care
than was taken so as to insure impartiality.
Whitt further objects to the voir dire because the trial
court refused to individually question prospective jurors
outside the presence of other jurors. The court denied
Whitt’s request for individual voir dire, citing the time and
effort such a procedure would entail. As noted, the trial
court is granted broad discretion in the conduct of voir dire
and its exercise of that discretion will not be reversed,
absent a clear showing of abuse. In view of our conclusions
as to the nature of the pretrial publicity here we find no
abuse of discretion in the trial court’s denial of Whitt’s
request that voir dire be conducted in such a manner.
7 — Silverthorne, the president and principal organizer of the San Fran-
cisco National Bank, was charged with misapplication of massive amounts
of the Bank's funds (approximately $30,000,000) and false entries in
bank records. When the bank was closed because of insolvency, “the San
Francisco Bay Area newspapers were saturated with more than 300 articles
concerning Silverthorne and the alleged reasons for the closing of the
bank. Radio and television coverage was likewise extensive.” Silverthorne,
supra, 400 F.2d at 631.
10d
[APPENDIX)
In sum, we are not persuaded that there was error in
the conduct of the voir dire of the jury.
II
Whitt next contends that the mailings of the warrants
were not an integral part of the kickback scheme and,
therefore, that the scheme does not fall within the purview
of the federal mail fraud statute.
Whitt offers three rationales for his argument. First he
says that the use of the mails was not a step toward receipt
of the fruits of the scheme. This premise is said to be
especially true with respect to those transactions in which
the kickback was paid before the vendor received the coun-
ty’s warrant. One vendor, Klutts, testified that he usually
paid his kickbacks “up front,” when an order was placed,
instead of waiting until the warrant was received from the
county. Tr. 158-59. In addition, several of the transactions
at issue were lease-purchase transactions instead of direct
purchases. In a lease-purchase transaction the county would
lease equipment from the vendor with an option to pur-
case the equipment at the end of the lease. The vendor
would assign its rights under the lease to a local bank. The
vendor would pay the kickback to Whitt and the county
would make monthly payments to the bank.
Whitt’s second theory to support this proposition is
related to the first. He contends that the government’s
failure to prove the sequence of the other transactions, t.e.,
the failure to prove that the kickbacks were paid after the
warrants were received, results in failure to establish that
the mailings were in furtherance of the fraudulent scheme.
Third Whitt argues that the mailings were, in effect, com-
pelled by state law and that, in light of Parr v. United
States, 363 U.S. 370 (1960), such mailings cannot be the
basis for conviction under § 1341.
We need not discuss these arguments in detail as we
have considered and rejected similar contentions in other
opinions filed this date. See United States v. Primrose,
1ld
[APPENDIX]
No. 82-1842, F.2d (10th Cir. 1983), and United States
v. Gann, No. 82-1591, F.2d . (10th Cir. 1983). In
Primrose we concluded that the mailings of warrants were
integral to the overall scheme, regardless of whether the
illegal kickback payment was made before or after the
mailing, slip opinion at 10-12, and we distinguished the
kickback scheme from the misappropriation of school reve-
nues in Parr, slip opinion at 13-15. In Gann we held that
the lease purchase transactions were properly within the
purview of the mail fraud statute. Slip opinion at 5-6. On
the reasoning in those opinions we conclude that Whitt’s
arguments are without merit.
III
As to Whitt’s contention that the evidence on the ex-
tortion counts failed to establish the effect on commerce
required under the Hobbs Act, we again are guided by our
opinion of the date in another case arising from the county
commissioner investigation, United States v. Boston, No.
82-1323, F.2d (10th Cir. 1983). In Boston, we held
that a de minimis effect on commerce would sustain federal
jurisdiction under § 1951.
The instruction given in the instant case differs some-
what from that given in Boston, where the jury was told
that one element of a Hobbs Act violation was that the
defendant “actually or potentially obstructed, delayed or
affected commerce.” Here the court instructed that the
prosecution was required to prove “that the natural con-
sequences of the acts alleged. .. would be to delay, interrupt
or adversely affect” commerce. As in Boston, the jurors
were further told that the government could carry its
burden of proof on this element by any of the following
three showings: (1) that the vendor was engaged in com-
merce and that the depletion of the vendor’s assets would
be the natural consequence of the alleged extortion; (2) that
Seminole County was engaged in commerce and that de-
pletion of its assets would be a natural consequence of the
12d
(APPENDIX)
alleged extortion; or (3) that the vendor purchased sup-
plies from outside the State of Oklahama which were then
brought into the State and delivered to Seminole County
as a result of the alleged extortion. Based on our holding
in Boston we find no error in this instruction. We do not
agree with Whitt’s assertion that the evidence was insuffi-
cient.
Whitt argues that the testimony of one vendor, Klutts,
gave no indication at all that he was engaged in interstate
commerce. Although this observation is correct, it does not
support Whitt’s position that the conviction on this count
should be reversed. Klutts did testify that he charged the
county higher prices because of the kickback scheme. Tr.
127, 176-77. Other trial testimony indicated that Seminole
County regularly purchased goods that had moved in inter-
state commerce. Therefore on the second ground outlined
above, there was sufficient evidence for the jury to make
the required finding to support the conviction on this count.
The vendors who were the victims in the other two ex-
tortion counts, Litton and Bucklin, testified that they made
purchases from other states. Litton testified that some of
the products he sold came from other states. Bucklin testi-
fied that machinery his company sold was manufactured
outside of Oklahoma. Tr. 184, 280. Whitt says the evidence
of an interstate nexus is “almost non-existent.” We dis-
agree and find the evidence sufficient to support the con-
victions.
Whitt relies on two cases from other circuits for the
proposition that the evidence must establish that the ex-
tortion victim “customarily” obtained goods through inter-
state commerce. United States v. Elders, 569 F.2d 1020 (7th
Cir. 1978); United States v. Merolla, 523 F.2d 51 (2d Cir.
1975). We are not pursuaded that the cases call for re-
versal here.
In Elders the evidence conclusively established that
the victim had ceased purchasing goods from outside the
13d
[APPENDIX)
State before the extortion and went out of business shortly
after the extortion. Even on those facts the reversal of the
conviction prompted a vigorous dissent. 569 F.2d at 1026-27
(Bauer, J., dissenting). Here there was no comparable evi-
dence that any extortion victim had ceased to make inter-
state purchases. Merolla is similarly unhelpful to Whitt.
There the victim was a construction company that was
formed solely to perform the one contract involved in the
indictment. These cases are readily distinguishable from
the instant case. Here the evidence indicated the victims
(whether the victim is seen as the county or the vendor)
were engaged in commerce on a continuing basis.
Accordingly we conclude that the evidence was suffi-
cient to support the Hobbs Act convictions.
IV
Whitt argues further that the court erred in instructing
the jury on the depletion of assets theory (see Part III) as
a method of establishing the requisite effect on commerce
under the Hobbs Act. He does not contend that the theory
is itself spurious. Rather, his claim is that the failure to
include the theory in the indictment prejudiced him and
that instructing on the theory when it was not charged in
the indictment constituted an amendment of the indictment
in violation of his Fifth Amendment rights. We considered
and rejected this argument in Boston. For the reasons
stated there, (slip op. at 7), we find that this proposition
is without merit.
V
Whitt submitted one final contention which was al-
lowed to be briefed by special order of the court. Whitt
claims error in the trial court’s refusal to permit him to
introduce evidence that a government witness, McKiddy,
had failed a polygraph examination. Whitt does not seek
to overturn the general rule that polygraph examination
results are inadmissible. Instead, he argues that special
14d
[APPENDIX]
circumstances present here required the admission of the
proof as an exception to that rule.
McKiddy was a vendor who testified that he had paid
kickbacks to Whitt. Because none of these transactions
were within the statute of limitations, McKiddy’s testimony
was used to establish a scheme or plan rather than as direct
evidence of the kickback and mailings on any particular
count. See United States v. Blosser, 440 F.2d 697, 699 (10th
Cir. 1971). McKiddy, like other vendors who testified, had
agreed to cooperate with the United States Attorney in the
prosecution of county commissioner cases, in exchange for
a promise to have only one count against him presented to
a grand jury. As part of this agreement each witness had
consented to submit to a polygraph exemination if re-
quested to do so.
Whitt says that he should have been allowed to cross-
examine on the results of that polygraph and to disclose
them to the jury because the prosecution opened the door
by offering the plea agreement in evidence on direct ex-
amination of McKiddy. Whitt contends that the court’s
refusal to permit this violated his Sixth Amendment right
to confront witnesses, which is paramount, citing Davis v.
Alaska, 415 U.S. 308 (1974). He further argues that his
due process rights were violated when, after this adverse
ruling, the prosecutor was allowed to comment, over ob-
jections, in closing argument that the government wit-
nesses were not likely to have been motivated to lie to the
investigators because they were subject to polygraph test-
ing. The trial court said that there was a difference in
the use made of the point in argument in that the plea
agreement “speaks of the obligation of the party to take
the polygraph test, though.” Tr. 438.
We are not persuaded that reversible error occurred.
We do agree that an unfairness resulted when the govern-
ment referred, during argument, to the provision on poly-
graphs in the plea agreement, after objecting and preventing
reference to the results of their admission in evidence. We
15d
[APPENDIX}
are convinced nevertheless that any error committed by
the trial court in connection with these rulings was harm-
less. McKiddy’s testimony was not crucial to proof of the
kickbacks in question, being instead evidence of other kick-
backs paid to Whitt as proof of the scheme alleged.* The
polygraph results show that the responses indicative of
deception were made to questions that did not involve the
defendants’ receipt of the kickbacks charged.® While the
results might have been useful to impeach the witness, the
matters involved were not of serious importance in the case.
In the circumstances any error was harmless.
VI
In sum, the defendant appellant has not demonstrated
any reversible error in the record of his trial. Accordingly
the judgment is
AFFIRMED.
8 Whitt relies primarily on United States v. Hart, 344 FSupp. 522
(E,D.N.Y. 1971), in which polygraph results were held admissible under
special circumstances. In Hart the prosecution knew that its principal wit-
ness had failed a polygraph examination. During cross-examination the
witness had blurted out that he had taken the test. The court said the
case should be considered primarily in light of Brady v. Maryland, 373
US. 83 (1963); that the defendant was entitled to inquire concerning
investigations which might put the government on notice that a govern-
ment witness was untruthful, citing Napwe v. Illinois, 360 US. 264
(1959); and that the test results were admissible on behalf of the defen-
dant because the government initially thought they were reliable enough
to assist it in evaluating its witness, although this did not constitute any
reason for changing the general rule against admission of such evidence.
However, here the witness McKiddy was not a crucial one and the
falsehoods indicated did not concern the defendant's conduct. While the
Hart case is convincing, we do not feel that it calls for reversal here.
9 The polygraph results are in the record, having been admitted as in
camera exhibits, and defense counsel was permitted to examine them dur-
ing cross-examination of McKiddy,
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.