Petition for Writ of Certiorari — Tanner v. United States

In The

Supreme Court of the U

October Term, 1986

ANTHONY R. TANNER and WILLIAM M. CONOVER,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

~~

Joun A. DeVavtt, IIT

Counsel of Record

Bepe.., Dirrmar, DeVauLr

& Piurzans P.A.

The Bedell Building

101 East Adams Street

Jacksonville, Florida 32202

(904) 353-0211

For Petitioner

Anthony R. Tanner

Of Counsel: Ricmarp A. Lazzara

Davi R. Best os of Record

Bzst & ANDERSON Suite =

Suite 840 Tes re

135 West Central Boulevard (813) 229. a 33602

Orlando, Florida 32801

(305) 425-2985 For Petitioner

William M. Conover

— 2 eee &

ro

QUESTIONS PRESENTED

I. Whether sworn evidence that jurors in a complex

IL.

criminal case consumed drugs and quantities of alco-

hol throughout the proceeding, rendering them unable

to review the facts, requires an evidentiary hearing

to determine whether defendants were afforded a fair

trial by a jury capable of deciding the case on the

evidence.

Whether the reach of Section 371 should be extended

to a conspiracy to defraud a private corporation

which is neither an agency of the federal government

nor its duly authorized representative, where the gov-

ernment has suffered no pecuniary loss.

LIST OF PARTIES TO PROCEEDINGS BELOW

The caption of the case in this Court contains the

names of all parties to the appeal to the United States

Court of Appeal for the Eleventh Circuit.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

LIST OF PARTIES TO PROCEEDINGS BELOW... il

OPINION BELOW ..... 1

STATEMENT OF JURISDICTION 2

STATUTORY PROVISIONS INVOLVED —

STATEMENT OF THE CASE 3

ARGUMENT _ 7

I. The Eleventh Circuit’s decision, which holds that

sworn evidence that jurors in a complex criminal

case were consuming drugs and quantities of alco-

hol which rendered them unable to review the

facts, does not require an evidentiary hearing be-

cause Fed.R.Evid.606(b) is limited to ‘* ‘extrane-

ous prejudicial information ... or. . . outside in-

fluence’ ’’ (App. 10), is contrary to the decisions

of this Court which hold that the sixth amend-

ment guarantees a criminal defendant the right to

a trial by a panel of jurors capable of deciding

the case on the evidence. 0 ett 7

Il. The Eleventh Circuit’s opinion extends the reach

of Section 371 to a conspiracy to defraud a pri-

vate corporation which is neither an agency of

the federal government nor its duly authorized

representative, where the government has suf-

fered no pecuniary loss. 0 ee =

CONCLUSION ! a

APPENDIX 2 ene ee i

iv

TABLE OF AUTHORITIES CITED

Page

Cases

Faith v. Neely, 41 F.R.D.361 (N.D.W.Va.1966) 9

Gamble v. State, 33 So.471 (Fa.V902) ccc cceecccseeeeeeennneees i)

Irvin v. Dowd, 366 U.S.717 (1961) 7

Jordan v. Massachusetts, 225 U.S.167 (1912) 0... 8

Jorgensen v. York Ice Machine Corp., 160 F.2d 435

(2d Cir.), cert.denied, 332 U.S.764 (1947) 2. 9

Lee v. United States, 454 A.2d 770 (D.C.App.1982) .. 10

Mcllwain v. Umted states, — U.S.—, 104 8.Ct.409

(1983) 9, 10, 11

Parker v. Gladden, 385 U.S.363 (1966) 7

Remmer v. United States, 347 U.S.227 (1954) _.. 7, 8,16

Smith v. Phillips, 455 U.S.209 (1982) Sees: Se . 7,9

Sullivan v. Fogg, 613 F.2d 465 (2d Cir.1980) es ©

Turner v. Louisiana, 379 U.S.466 (1965) Se

United States v. Brasco, 516 F.2d 816 (2d Cir.),

cert.demed, 423 U.S.860 (1975) 0... a ae

United States v. Burgin, 621 F.2d 1352 (5th Cir.),

cert.denied, 449 U.S.1015 (1980) 14

United States v. Conover, 772 F.2d 765 (11th Cir.

1985) passim

United States v. Del Toro, 513 F.2d 656 (2d Cir.),

Cert.demted, 423 U.S.826 (1975) ncccccccccccsccsssccsssssessesssssueeesees —

United States v. Johnson, 383 U.S.169 (1966) 00. 12

United States v. Porter, 591 F.2d 1048 (5th Cir.

1979) 12, 13, 15

v

TABLE OF AUTHORITIES—Continued

Page

Cases—Continued

United States v. Taliaferro, 558 F.2d 724 (4th Cir.

1977). cert.denied, 434 U.S.1016 (1978) 0 9

United States v. Walter, 263 U.S.15 (1923) 0. 12

ConsTITUTIONS AND Laws

United States Constitution

Amendment VI ... cihabtlaie passim

18 U.S.C.§ 371 (1982) ............. ' passim

28 U.S.C.§ 1254(1) (1982) ow. 2

Fed.R.Evid.606(b) ; 2, 3, 5, 7,9

OTHER AUTHORITIES

3 J.Weinstein and M.Berger, Weinstein’s Evidence

{] 606[04] (1985) 9

8 Wigmore Evidence § 2354 (McNaughton rev.1961) ..... 9

a

vr.

Ww

In The

Supreme Court of the United States

October Term, 1986

ANTHONY R. TANNER and WILLIAM M. CONOVER,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

nited States Court of Appeals

for the Eleventh Circuit

-

PETITION FOR WRIT OF CERTIORARI

. A

OPINION BELOW

The decision of the United States Court of Appeals

for the Eleventh Circuit is reported at United States v. Con-

over, 772 F.2d 765 (11th Cir.1985). The Court of Appeals’

order denying rehearing and rehearing en banc is not

printed in an official reporter at this date. The final judg-

ment of the trial court was not printed in an official re-

porter.

STATEMENT OF JURISDICTION

This petition for writ of certiorari to the United States

Court of Appeals for the Eleventh Circuit arises from a de-

cision by said court rendered September 30, 1985. The ap-

pellate court subsequently denied petitioners’ timely peti-

tions for rehearing and rehearing en banc on June 26, 1986.

This Court has jurisdiction to review the judgment by writ

of certiorari under 28 U.S.C.4 1254 (1) (1982).

STATUTORY PROVISIONS INVOLVED

This petition involves the sixth amendment of the

United States Constitution, the federal conspiracy statute,

18 U.S.C.4 371 (1982), and Federal Rule of Evidence

606(b). The portions pertinent to the issues raised herein

are set forth below:

U.S.Const.amend. VI:

‘‘Tn all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by an im-

partial jury....”’

18 U.S.C.§ 371 (1982)—Conspiracy to Commit Offense

or To Defraud United States:

‘‘If two or more persons conspire either to commit

any offehse against the United States, or to defraud the

United States, or any agency thereof in any manner or

for any purpose, and one or more of such persons do

any act to affect the object of the conspiracy, each shall

be fined not more than $10,000 or imprisoned not more

than five years, or both.’’

3

Fed.R.Evid.606—Competency of Juror as Witness:

**(b) Inquiry into validity of verdict or indict-

ment.

**Upon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any matter

or statement occurring during the course of the jury’s

deliberations or to the effect of anything upon his or

any juror’s mind or emotions as influencing him to as-

sent to or dissent from the verdict or indictment or

concerning his mental processes in connection there-

with, except that a juror may testify on the question

whether extraneous prejudicial information was im-

properly brought to the jury’s attention or whether

any outside influence was improperly brought to bear

upon any juror. Nor may his affidavit or evidence of

any statement by him concerning a matter about which

he would be precluded from testifying be received for

these purposes.”’

"_ =

—(Q-—

STATEMENT OF THE CASE

Petitioners Anthony R. Tanner, a private contractor,

and William M. Conover, the former manager of procure-

ment of Seminole Electric Cooperative, were convicted of

having conspired to “defraud the United States” by im-

peding the “function of the Rural Electrification Adminis-

tration in its administration of its guaranteed loan pro-

gram,” and by depriving Seminole of “its right to the

honest and faithful services of its employees.”

After the verdict in the second trial (the first ended

in a hung jury after six weeks), defense counsel received

a telephone call from a juror stating that several jurors

had consumed alcoholic beverages during luncheon recesses

and had consequently fallen asleep during the afternoon

4

trial sessions. The trial judge tersely denied the request

for an evidentiary hearing, stating, “I didn’t see anyone

sleeping” (Tr.XIX at 57)’.

While the appeal was pending, counsel received an

unsolicited visit at his home from another juror, who

stated that he had been struggling with his conscience

for months and felt the defendants should have an op-

portunity to be judged by jurors who “would review the

facts right’’ (App. 47), rather than by people who felt as

though they were ‘‘on one big party’’ (App. 26) and had

‘‘no business being on the jury’’ (App. 47). He confirmed

in a sworn statement (App. 23) that many of the jurors

were consuming large quantities of aleohol each day dur-

ing the luncheon recess (a liter of wine by the fore) crson,

one or two mixed drinks each by two other female jurors,

and a pitcher of beer each by the male jurors), and stated,

in addition, that the four male jurors smoked marijuana

daily during the lunch recess. Further, two of the jurors

were “injesting” “a couple of lines” of cocaine at the

City parking garage during the lunch breaks (App. 39-45),

one of whom sold the other a quarter pound of marijuana

during the trial (App. 51-52), and took marijuana, co-

caine and drug paraphernalia into the United States

District Courthouse and eame out of the jurors’ rest-

room ‘‘sniffing like he got a cold’’ (App. 38, 51). The

juror concluded that the use of these intoxicants and nar-

eotics caused the jurors to be “messed up,” “stutter a...

bit,” and “falling asleep all the time during the trial”

5

(App. 46), which prevented the jury from reviewing the

facts in this complex case so as to afford the defendants

a fair trial (App. 47).

Despite this sworn evidence of jury misconduct, the

district judge again refused to hold an evidentiary hear-

ing (R.1086-90) and the Eleventh Circuit affirmed, hold-

ing that the use of alcoho! and narcotics by jurors did not

constitute an “outside influence,” under Fed. R.Evid.606(b)

and, therefore, that “the district court was under no duty

to investigate the allegations, and did not abuse its dis-

eretion in refusing to conduct an evidentiary “hearing”

(App. 10).

The evidence showed that Seminole (a private Florida

corporation owned by several rural electric cooperatives)

borrowed funds from an agency of the United States

Treasury in order to construct a coal-fired power plant

and that the loan was guaranteed by the Rural Electri-

fication Administration (“REA”). When the contractor

for the patrol road beneath the power transmission lines

was unable to construct these roads with the available

sand fill material, Conover, the Procurement Manager,

contacted his friend Tanner, who recommended the use

of limerock overburden which he had available for sale.

That material was inspected and approved by Seminole’s

engineering department. Because Seminole’s internal pol-

icy required bids for contracts in excess of $200,000, speci-

fications were drawn for fill material requiring limerock

content in accord with the overburden recommended and

supplied by Tanner, giving him an advantage over other

bidders and violating Seminole’s interna! conflict of in-

terest policies. The Eleventh Circuit rejected petitioners’

contention that the evidence did not establish a conspiracy

or scheme to defraud the United States, as charged.

Specially concurring, Judge James C. Hill stated:

“Section 371 criminalizes conspiracies ‘to defraud

the United States, « any agency thereof in any man-

ner or for any purpose.’ It does not criminalize a

conspiracy to defraud a private party. The evidence

in this case was sufficient to prove that the defendants

conspired to defraud Seminole Electric. In my view,

however, the prosecution did not prove a conspiracy

to defraud the government of the United States”

(App. 17).

“No Supreme Court decision has upheld a conviction

under section 371 . . . where the defendants neither

defrauded the federal government of its funds or

property nor interfered with United States govern-

ment officials or their agents performing an official

function of the federal government’’ (App. 17-18).

“(I]n section 371 Congress obviously did not ecrimi-

nalize every conspiracy with the intent or effect of

thwarting that objective. Congress has demonstrated

well its ability to utilize the criminal law to protect

its far-flung financial and other interest in non-

federal programs and entities. Because it has not

done so here, section 371 should not be construed to

reach appellants’ acts’’ (App. 21-22).

After having been pending before the Court of Ap-

peals for more than nine months, the petition for re-

hearing and suggestion for rehearing en banc were denied.

This petition followed.

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The sixth amendment requires that ‘‘[i]n all criminal

prosecutions, the accused shal! enjoy the right to a speedy

and public trial, by an impartial jury .. .’’ (U.S. Const.

amend.VI). This Court has long recognized that the foun-

dation of our system of criminal justice is the right to a

trial before ‘‘a jury capable and willing to decide the case

solely on the evidence before it ....’’ Smith v. Phillips,

455 U.S.209, 217 (1982). Accord Parker v. Gladden, 385

U.S.363, 364 (1966); Turner v. Louisiana, 379 U.S.466,

472 (1965); Irvin v. Dowd, 366 U.S.717, 722 (1961).

In Smith v. Phillips, this Court emphasized that where

the impartiality of a juror is challenged, the defendant has

a right to an evidentiary hearing to determine whether de-

fendant was afforded a fair trial.

“This Court has long held that the remedy for

allegations of juror partiality is a hearing in which the

defendant has the opportunity to prove actual bias.’’

455 U.S. at 215 [citing Remmer v. United States, 347

U.S8.227 ‘1954)].

In Remmer v. United States, 347 U.S.227, 229 (1954),

this Court held that evidence of outside influence on a juror

during the course of trial was ‘‘deemed presumptively prej-

udicial,’’ thereby requiring an evidentiary hearing at which

the government has the heavy burden of demonstrating

‘*such contact with the juror was harmless to the defen-

dant.’’ Where there is sworn evidence that the jurors

were not able to comprehend and review the facts because

of their inebriated condition, a defendant should be entitled

to the similar right to a Remmer-type hearing.

This and other courts have recognized the right to a

mentally competent jury. Sve, e.g., Jordan v. Massachu-

setts, 225 U.S.167 (1912); Sullivan v. Fogg, 613 F.2d 465,

467 (2d Cir.1980) (trial before jury with an insane juror in-

consistent with due process). However, the Eleventh Cir-

cuit opinion would limit the scope of the sixth amendment’s

protection to instances involving ‘‘ ‘extraneous prejudicial

information’ ’’ or ‘‘ ‘outside influence’.’’ Thus, under the

Eleventh Circuit’s rationale, if a party discovered after the

verdict that a number of the jurors were incompetent or

deaf, no evidentiary hearing would be required to deter-

mine whether such infirmity rendered them incapable of

comprehending the evidence and rendering an impartial

verdict because those impairments do not involve “ ‘ex-

traneous prejudicial information’’’ or ‘‘ ‘outside influ-

ence’.’’ Here, a sworn statement demonstrates that the

jurors in this case, by their excessive use of intoxicants

and narcotics, were ‘‘flying,’’ ‘‘messed up,’’ ‘falling

asleep,’’ and clearly unable to comprehend and review the

facts in this complex criminal case (App. 45-46) To hold

that such evidence does not require an evidentiary hear-

ing, much less a new trial, ignores this Court’s consistent

commitment to the sixth amendment’s guarantee to a fair

hearing by a panel of impartial jurors ‘‘capable and will-

ing to decide the case on the evidence’’ Phillips, supra, 455

U.S. at 217.

Moreover, the Eleventh Circuit’s opinion, which holds

that substance abuse (whether occurring in a restaurant

or a parking garage or in the jury room itself), does not

constitute any ‘‘ ‘outside influence’’’ under Rule 606(b),

stands alone and is contrary to every treatise or case that

has yet addressed that issue:

‘*Rule 606(b) would not render a witness incompetent

to testify to jury irregularities such as intoxication

sea of whether the jury misconduct occurred

within or without the jury room.’ 3 J.Weinstein and

M.Berger, Weinstein’s Evidence 606[04] at 606-29

through 606-32 (1985).?

We are unaware of any prior case involving juror mis-

conduct of such an egregious nature (and the government

has cited none). This Court denied certiorari in Me-

Theain v. United States, — US.—, 104 S.Ct.409 (1983),

where the fact that the foreperson was drinking prior to

deliberation was called to the trial court’s attention. The

2 See, e.g., United States v. Taliaferro, 558 F.2d 724, 726 (4th

Cir. 1977), cert.denied, 434 U.S.1016 (1978) (evidentiary a

held to determine whether drinks consumed at dinner a

764 (1947) Hand, }.) (drunkenness and bribery are matters

Sok eee been any testimony after the verdict); Faith

v. Neely, 41 F.R.D.361, (N.D.W.Va.1966) (affidavit claiming

one juror was intoxicated caused court to present questionnaire

to each juror to determine whether the “juror’s faculties were

affected and [whether] he could . discharge his duties’)

i

10

judge immediately held a separate voir dire of each juror,

ordered a three-day recess and, upon examination the fol-

lowing Monday, detected no further disability. Lee v.

United States, 454 A.2d 770, 774 (D.C.App.1982). The

District of Columbia Court of Appeals noted :

‘*During this whole process, only one juror was

involved, and only a short period of deliberations was

called into question. There is no evidence that any

drinking actually occurred in the jury room or during

the course of the trial, and the jury foreperson was not

conclusively shown to have been intoxicated at the time

of voir dire. The recess, coupled with the judge’s

checking in on the jury on Monday, both of which were

done with the concurrence of appellant's counsel, fore-

closed the possibility of prejudice. Under these cir-

sumstances, it cannot reasonably be said that the ap-

pellants were substantially deprived of their right to

the judgment of objective and competent jurors.’’ 454

A.2d at 772.

By contrast, the sworn evidence presented here shows

that at least seven of the jurors consumed large amounts of

alcohol and /or drugs; that the drinking of alcoholic bever-

ages and smoking of marijuana together oceurred through-

out the course of the proceedings; that cocaine was being

used on a regular basis; and that drugs and paraphernalia

were actually taken into and used in the jury room. And

here, wo evidentiary hearing was ever held.

The dissent of Mr. Justice Marshall from the denial of

the petition in Mcl/lwam applies with even greater force to

the facts presented in the instant case:

“This Court has repeatedly insisted in a wide

variety of contexts that the right to be tried before a

jury capable and willing to decide a case on the

suenes befese it to 0 Geunennenn al aa jus-

11

tice system. See, e.g., Jrvin v. Dowd, 366 U.S. 717, 81

S.Ct. 1639, 6 L.Ed.2d 751 (1961). This precious right

is denigrated when a conviction resting upon delibera-

tions tainted by a juror’s gross and debilitating im-

propriety is allowed to stand.’’ — U.S. at —, 104 S.Ct.

at 411.

‘*{Djue process may well require the granting of a

mistrial whenever a trial judge finds that a juror, al-

ready engaged in deliberations, is so drunk that the

deliberations must be recessed. This rule would un-

doubtedly affect very few trials; drunkenness on the

part of active jurors is certainly an abberation. As to

objections that this per se rule would create incon-

venience and pose a drain on judicial resources, the

only response is that such costs are what we must pay

in order to give more than lip service to our claim that

trial by an impartial and competent jury constitutes a

‘priceless’ right. See Irvin v. Dowd, supra, 366 U.S.

at 721, 81 S.Ct. at 1641."" — U.S. at —, 104 S.Ct. at

412-13.

Point II

The Eleventh Circuit’s opinion extends the reach

of Section 371 to a conspiracy to defraud a pri-

vate corporation which is neither an agency of

the federal government nor its duly authorized

representative, where the government has suf-

fered no pecuniary loss.

As stated by Judge Hill:

‘*No Supreme Court decision has upheld a conviction

under section 371 . . . where the defendants neither de-

frauded the federal government of its funds or prop-

erty nor interfered with United States government of-

ficials or their agents performing an official function

of the federal government.’’ (App. 17-18, Hill, J., spe-

cially concurring. )

Yet the majority’s opinion extends the reach of Section 371

to a conspiracy involving allegations that a private con-

12

tractor defrauded ‘‘a private party .... Seminole Electric

.... [without any proof of] a conspiracy to defraud the

government of the United States’’ (App. 17).

Seminole Electric is neither an agency of the federal

government nor its representative performing a duly au-

thorized federal governmental function. Granted, it re-

ceived a loan from a federal agency, and its loan was guar-

anteed by the REA, but as noted:

‘*Congress has deliberately avoided undertaking the

construction of rural power plants as a federal govern-

ment enterprise. I have little doubt that Congress has

an interest in ‘seeing that the entire project [receiving

its aid] is administered honestly and efficiently and

without corruption and waste’... . But in section 371

Congress obviously did not criminalize every conspir-

acy with the intent or effect of thwarting that objec-

tive’’ (App. 21).

Thus, the panel’s opinion ignores the limitations previously

imposed on the reach of Section 371 and would criminalize

any dishonest act involving any program funded or guaran-

teed by the federal government. As stated by Judge Hill:

“By artful lawyering, one might easily blur the distinction

between the United States government and those receiving

its support beyond clear recognition’’ (App. 20).

The Fifth Cireuit squarely addressed this issue in Unit-

ed States v. Porter, 591 F.2d 1048 (5th Cir.1979)?, where

’ The holding in Porter —— application of Section 371

to instances involving loss of federal funds or property, or inter-

ference with federal officials or their authorized agents, is con-

sistent with established case law. See, e.g., United States v.

Johnson, 383 U.S.169 (1966); United States v. Walter, 263 U.S.15

(1923); United States v. Brasco, 516 F.2d 816 (2d Cir.), cert.

denied, 423 U.S.860 (1975); United States v. Del Toro, 513 F.2d

656 (2d Cir.), cert.denied, 423 U.S.826 (1975).

13

physicians who obtained increased fees by submitting blood

samples to ‘‘manual’’ rather than ‘‘automated’’ labora-

tories for testing were charged with conspiracy to defraud

the United States of its ‘‘right to have the Medicare pro-

gram conducted honestly, fairly and free from deceit’’ (591

I’.2d at 1055). The Court reversed their convictions, hold-

ing that if the government proceeds under a theory of inter-

ference with a federal agency, it must specifically plead and

prove the governmental function which has been obstructed:

‘*Since it is conceded that the government has not

been subjected to any property or pecuniary loss by

the activity set forth in the indictment, the conspiracy

count can stand only if the government can point to

some lawful function which has been impaired, ob-

structed or defeated. The government simply asserts

that it was defrauded of its right to have the Medicare

program conducted henestly and fairly. In our opin-

ion, in the context of a criminal prosecution, the gov-

ernment has failed to demonstrate interference with

any of its lawful functions.’’ 591 F.2d at 1055-56.

‘*We must hold that the indictment failed to charge

a conspiracy to defraud the United States and that the

government failed to prove any such conspiracy at

trial. It is our affirmative duty to carefully scrutinize

indictments under the broad language of the conspiracy

statute because of the possibility, inherent in a criminal

conspiracy charge, that its wide net may ensnare the

innocent as well as the guilty. We cannot hold that the

defendants’ conduct was ‘plainly and unmistakably’

proscribed by 18 U.S.C. § 371.’’ 7d. at 1057 (citations

and footnote omitted).

The present indictment mirrors that found defective in

Porter: It charges a conspiracy to interfere with the law-

ful functions of a governmental agency, but does not specif'y

how the defendants’ conduct caused such an obstruction or

14

interference; it does not allege any loss of government

property or money; it does not allege that the contracts or

the bidding procedure required REA approval; and it does

not allege that any statute or regulation was violated by the

alleged conspiracy. Neither did the proof at trial establish

those elements.

One year later, anether panel of the Fifth Circuit in

United States v. Burgin, 621 F.2d 1352 (5th Cir.), cert.

denied, 449 U.S.1015 (1980) (speaking through District

Judge Garza, who wrote the majority opinion in the instant

case), held the conspiracy statute did reach the actions of a

state senator who used his position to exert undue influence

upon officials of the state agency charged with administer-

ing a federally-funded Head Start training program. In

his opinion for the majority in the instant case, Judge

Garza does not even purport to limit the reach of Section

371 to cases involving ‘‘public officials’’ or ‘‘agents of the

United States’’ (as he did in Burgin), but would encompass

all projects with any nexis to the federal government.

Thus, presumably, a home builder who defrauded a private

individual whose mortgage was insured by the Federal

Housing Authority would now be subject to the federal con-

spiracy statute, since Congress clearly would desire the

project to be carried out ‘‘honestly and without corruption

and waste.’’ This Court has not approved such a broad ex-

tension of the consiracy laws, nor has Congress indicated

an intent to make conduct against a private corporation

without loss of federal funds a crime against the United

States. Judge Hill in his specially concurring opinion rec-

ognized that ‘‘where a state or private party is simply act-

ing as an agent of the United States government in the im-

plementation of a truly federal program, a fraud upon the

15

agent may constitute a fraud upon the United States’’

(App. 19). However, he urged that

“the courts should not generally find such an agency

relationship in the absence of compelling evidence

that the state or private party was in fact defrauded

while acting as a mere agent of the federal govern-

ment performing a constitutionally legitimate and

duly authorized function of the federal government,

rather than as a non-federal entity receiving some

form of federal assistance’’ (App. 19).

In this case, clearly “Seminole Electric is neither an agency

of the federal government nor its representative perform-

ing a duly authorized federal governmental function”

(App. 21). Under such facts, the expansion of the fed-

eral conspiracy statute is wholly unwarranted and de-

prives these defendants of their due process right to a

statute which “plainly and unmistakably” proscribes the

conduct before they are punished for its violation. (Por-

ter, supra, 591 F.2d at 1055.) As emphasized by Judge

Hill:

“Courts must always remain mindful, however, of the

admonition that penal statutes are to be strictly con-

strued, a rule that is ‘perhaps not much less old than

construction itself.’ United States v. Wiltberger, 18

U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820) (Mar-

shall, C.J.). . . . Thus it is essential that section

371 ‘plainly and unmistakably’ proscribe the conduct

of defendants before they are punished for its vio-

lation. [Citation omitted.] Courts may necessarily

find it difficult to formulate and apply a definition

of ‘defraud,’ as that term is used in section 371, that

men and women ‘of common intelligence’ will easily

understand. . . . ‘The United States,’ however, is a

term that need not be so broadly and mysteriously

defined’’ (App. 20-21).

16

CONCLUSION

For the above-stated reasons, petitioners respectfully

request the Court to issue a writ of certiorari to the Court

of Appeals for the Eleventh Circuit remanding the case

for entry of a judgment of acquittal. Althernatively,

the Court should require the district court to conduct a

Remmer-type evidentiary hearing on juror misconduct.

Respectively submitted,

Joun A. DeVav tt, Il

Counsel of Record

Bepe.., Dirrmar, DeVavuLtr

& Pruzans P.A.

The Bedell Building

101 East Adams Street

Jacksonville, Florida 32202

(904) 353-0211

For Petitioner

Anthony R. Tanner

Of Counsel: Ricwarp A. Lazzara

Counsel of Record

Davi R. Best 606 Madi

Best & ANDERSON Suite — =

Suite 840 Tampa, Florida 33602

135 West Central Boulevard 3 00.9008

Orlando, Florida 32801 (813)

(305) 425-2985 For Petitioner

William M. Conover

In The

Supreme Court of the United States

October Term, 1986

ANTHONY R. TANNER and

WILLIAM M. CONOVER,

Petitioners,

Vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

~o—

APPENDIX TO PETITION FOR WRIT

OF CERTIORARI

Joun A. DeVavrr, IIT

Counsel of Record

Bepe.ty, Drrrmar, DeVavur &

Prutans P.A.

The Bedell Building

101 East Adams Street

Jacksonville, Florida 32202

(904) 353-0211

For Petitioner

Anthony R. Tanner

Ricwarp A. Lazzara

Counsel of Record

606 Madison

Suite 2002

Tampa, Florida 33602

(813) 229-2003

For Petitioner

William M. Conover

Of Counsel:

Davi R. Best

Best & ANDERSON

Suite 840

135 West Central Boulevard

Orlando, Florida 32801

(305) 425-2985

TARLE OF CONTENTS

Page

ORDER DENYING PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN

BANC IN UNITED STATES COURT OF AP-

PEALS FOR THE ELEVENTH CIRCUIT _.App. 1

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT _App. 3

SWORN STATEMENT OF DANIEL MARTIN

EATS eee App. 23

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 84-3431

84-3876

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM M. CONOVER and

ANTHONY R. TANNER,

Defendants- Appellants.

Appeal from the United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion ——., 11 Cir., 198., —— F.2d ——).

(Filed June 26, 1986)

Before HILL and ANDERSON, Circuit Judges, and

GARZA*, Senior Circuit Judge

PER CURIAM:

(” ) The Petition for Rehearing is DENIED and no

member of this panel nor Judge in regular active service

on the Court having requested that the Court be polled on

rehearing en bane (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 26), the Suggestion for

Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED and the

Court having been polled at the request of one of the mem-

bers of the Court and a majority of the Circuit Judges who

* Honorable Reynaldo G. Garza, U. S. Circuit Judge for the

Fifth Circuit, sitting by designation.

App. 2

are in regular active service not having voted in favor

of it (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Cireuit Rule 26), the Suggestion for Rehearing

En Bane is also DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

bane, and a majority of the judges in active service not

having voted in favor of it, rehearing en bane is DENIED.

ENTERED FOR THE COURT:

James C. Hill

United States Circuit Judge

ee

App. 3

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

William M. CONOVER and Anthony R.

Tanner, Defendants- Appellants.

Nos, 84-3431, 84-3876.

United States Court of Appeals,

Eleventh Cireuit.

Sept. 30, 1985.

Appeals from the United States District Court for the

Middle District of Florida.

Before HILL and ANDERSON, Circuit Judges, and

GARZA*, Senior Circuit Judge.

GARZA, Senior Circuit Judge:

A jury convicted William M. Conover and Anthony R.

Tanner of conspiring to defraud the United States in viola-

tion of 18 U.S.C. § 371, and committing various acts of mail

fraud in connection with the conspiracy in violation of 18

U.S.C. § 1341. Conover and Tanner have appealed, arguing

that the district court abused its discretion in refusing to in-

vestigate allegations of juror misconduct ; that the conspir-

acy count of the indictment failed to charge a crime against

the United States; that the evidence is insufficient to sup-

port the mail fraud convictions; and that the district court

made various evidentiary rulings which warrant reversal.

We affirm the convictions.

I

Seminole Electric Cooperative, Inc. (‘‘Seminole’’), is

a Florida corporation owned by several rural electric

cooperatives located in central Florida. In 1979, Seminole

borrowed over $1.1 billion from the Federal Financing

App. 4

Bank, which is an agency of the United States Treasury,

for the purpose of constructing a coal-fired power plant

near Palatka, Florida. The loan was guaranteed by the

Rural Electrification Administration (‘‘REA’’), which is

en agency of the United States Department of Agriculture.

The REA administers a guaranteed loan program for eligi-

ble rural electric cooperatives. Conover was employed as

Seminole's manager of procurement.

Construction of the plant began in September 1979. In

order to install a transmission line running from the plant

to a substation located outside of Ocala, Florida, it was

first necessary to build a fifty-one mile patrol road. The

patrol road had to be made of materials which would sup-

port heavy trucks and resist flooding. The construction

contract for the patrol road was originally awarded to

Journagan Construction Company (‘‘Journagan’’).

Journagan encountered problems soon after construc:

tion of the road began. It had been assumed that Journagan

would be able to use sand located in the area where the road

was being built. As it turned out, however, the sand would

not compact to a density sufficient to support even light-

weight vehicles. Seminole hired the engineering consulting

firm of Ross and Associates (‘‘Ross’’) to evaluate the situ-

ation. Ross suggested that the natural sands be used as

the primary fill material, and then top,ed with a sand-clay

mixture which would be more cohesive and stable. Journ-

agan began to implement this method, but soon encountered

difficulty in obtaining sufficient amounts of clay.

A meeting was held at Seminole’s Tampa office in

March 1981. The purpose of the meeting was to discuss

ways of accelerating the construction project. The problem

of obtaining adequate fill materials for the patrol road was

App. 5

also discussed. During the meeting, Richard Sherrill, Semi-

nole’s supervisor of transmission engineering, instructed

Conover to locate sources of fill material. Journagan rep-

resentatives indicated that they had not attempted to locate

alternative fill materials. They also indicated that the con-

traet price would have to be increased substantially in order

for them to complete the road. Journagan’s contract was

subsequently terminated.

Following the meeting, Conover called Tanner. Tanner

owned a limerock mine, and was also involved in the real

estate development business. Tanner and Conover dis-

cussed the possibility of using limerock and limerock over.

burden as an alternative fill material. Limerock overburden

is a material which is generally found above limerock de-

posits. On March 26, 1981, at Conover's request, Seminole

engineer Ken Bachor examined the fill material available

at Tanner's Citra Mine. Bachor later advised Sherrill that

the material would be adequate for the project. Sherrill

subsequently issued a purchase order to acquire enough

limerock overburden to keep construction underway. Con.

over did not investigate any other sources of alternative

fill materials.

Tanner and Conover were friends, and had gone on

several fishing trips together. They had flown to the Ba-

hamas together in Tanner's private plane in 1980. In May

1981 Conover purchased a condominium from (rysta! Ri-

ver Investors, a company owned by Tanner. Tanner loan-

ed Conover $6000 so that Conover could close on the con-

dominium ; this money was repaid in June 1981. Previous-

ly, in January 1981, Conover had contracted with Tanner to

perform landscaping work and install a sprinkler system

at the condominum complex for a fee of approximately

App. 6

$13,700. On March 9, 1981, Tanner gave Conover a check

for $10,035 which was allegedly made in partial payment

of the money owed under the landscaping contract. Con-

over received a total of $15,000 under the landseaping con-

tract. The record does not reflect how much of the $15,000 |

was profit.

With Journagan no longer working on construction of

the patrol road, it became necessary to award a new con-

tract for the construction of the patrol road through Sem-

inole’s formal competitive bidding procedure. Seminole

decided not to award just one contract for the patrol road

project as it had done with Journagan. Instead, the com-

pany decided to bid out two separate contracts : one to pro-

vide fill material and one to provide for the spreading of

the fill material. The specifications for the fill material

described in the contract were drawn up by Seminole’s pro-

curement department. The specifications stated that the

fill material had to have a limerock content of at least

twenty percent. This requirement worked in favor of Tan-

ner for several reasons. First, the Citra Mine was rela-

tively undeveloped. That is, there was a great deal of over-

burden still present above the limerock deposits; conse-

quently, it would be easy for Tanner to remove the over-

burden, then mix in only the minimam amount of lime-

rock necessary to meet the specifications required by the

contract. Second, the contract specifications exeluded con-

tractors who could have made bids had the contract re-

quired the use of a sand and clay mixture rather than a

limerock mixture. Additionally, one contraetor complained

that the time period in which bids had to be submitted was

too short. Tanner submitted the lowest of several bids

made on the fill contract, and was awarded the job. Tan-

App. 7

ner also made the lowest bid on the spreading contract, and

was awarded that job as well.

More problems arose after Tanner began working on

the road. First there was a dispute as to which party,

Seminole or Tanner, was required to maintain the access

roads leading to the patrol road. Conover and another

Seminole employee advised Kenneth Bachor, Seminole’s

manager of transmission engineering, that the contract

was ambiguous, and that Seminole should pay; Seminole

ended up paying the costs of maintaining the access

roads. Subsequently, REA complained that the bond pro-

vided by Tanner was unacceptable because the bonding

company was not on the Treasury Department’s list of ap-

proved sureties. In a letter dated July 17, 1981, Conover

told another bonding company that the patro! road had be-

en “essentially” completed, and that the work had been per-

formed in a satisfactory manner. In another letter dated

July 6, 1981, Conover stated that fifty percent of the road

had been completed. In fact, the road was less than half

finished at that time. It was also learned that limerock

weakens when it becomes wet; consequently, the limerock

mixture could not be used in areas subject to water flood-

ing. As a result, “clean sand” had to be substituted in

high-water areas. Tanner charged $4.75 for each cubic

yard of fill material delivered and spread; Journagan had

been charging only $3.82 per cubic yard of pure sand deliv-

ered and spread. The patrol road was completed in Octo-

ber 1981.

Prior to the time the road was completed, in June

1981, representatives of the Withlacoochie Rural Electric

Cooperative, Inc., which was a member of the Seminole

App. 8

cooperative, demanded that Seminole terminate all busi-

ness relations with Tanner. This demand was based on al-

leged improprieties in the manner in which the contracts

with Tanner had been awarded. Federal! authorities were

investigating the situation by November 1981. Conover

was subsequently suspended, then demoted, for violating

Seminole’s conflict of interest policies.

Tanner and Conover were first indicted in June 1983.

The six week trial that followed resulted in a hung jury,

and a mistrial was declared. Tanner and Conover were

subsequently reindicted on a five count indictment. Count

I alleged that Tanner and Conover had conspired to de-

fraud the United States in violation of 18 U.S.C. § 371;

counts II through V alleged separate instances of mail

fraud in violation of 18 U.S.C. § 1341. Conover was con-

vieted on all counts. Tanner was convicted on counts I, II,

IV, and V. Two motions for new trial based on allegations

of jury misconduct were filed; both were denied.

Il

Appellants’ first contention is that the district court

erred in refusing to conduct an evidentiary hearing for the

purpose of investigating claims of jury misconduct. The

factual underpinnings supporting this contention are some-

what unusual. Allegations of jury misconduct were ori-

ginally pressed by the appellants while their motion for

new trial was still pending. In a sworn affidavit, Tan-

ner’s attorney stated that he received an unsolicited phone

call from a juror. The juror told Tanner’s attorney that

several members of the jury had been drinking during the

lunch recess, and that several jurors had fallen asleep dur-

App. 9

ing the trial. The district court considered the affidavit,

heard arguments on the matter, and denied the motion for

new trial.

Subsequently, and while the appeal of the case was

pending in this court, Tanner filed, and Conover joined

in, a motion for new trial based on newly discovered evi-

dence of jury misconduct. In another affidavit, Tanner’s

attorney stated that on October 13, 1984, he received an un-

solicited visit (at his residence) from a second juror. This

juror was formally interviewed, presumably at the request

of Tanner’s attorney, by two private investigators on Oc-

tober 15. The interview was transcribed; the transcript

was sworn to by the juror, and attached to the motion for

new trial.

During the interview, the juror made a number of

alarming allegations concerning the conduct of the jurors.

He said that “the jury was one big party,” and that several

jurors, himself included, drank beer and smoked marijuana

during the noon recess. He also stated that two of the jur-

ors had on occasion injested cocaine during the noon recess,

and that he had learned that one of these two jirors had

offered to sell the other a quarter-pound of marijuana. He

also indicated that he had voluntarily come forward with

this information to clear his conscience, and that he had not

received or been promised any type of remuneration for

his statement. The trial court denied the motion for new

trial based on this newly discovered evidence without first

conducting an evidentiary hearing.

The decision to investigate allegations of jury miscon-

duct rests within the sound discretion of the district court.

See US v. Darby, 744 F.2d 1508, 1540 (11th Cir.1984).

App. 10

“(T]here is no per se rule requiring an inquiry in every

instance.’ Id. (quoting U.S. v. Barshov, 733 F.2d 842, 851

(11th Cir.1984)). When an evidentiary hearing is conduct-

ed, the inquiry is limited to determining “whether extran-

eous prejudicial information was improperly brought to the

jury’s attention or whether any outside influence was im-

properly brought to bear upon any juror.” See FED.R.

EVID. 606(b). The affidavit supporting appellants’ mo-

tion for new trial does not allege that prejudicial informa-

tion was brought to the jury’s attention. Similarly, it does

not allege that any outside influence was brought to bear

upon any juror. Even if the allegations of substance abuse

were true, there is no “adequate showing of extrinsic in-

fluence to overcome the presumption of jury impartiality.”

Barshov, 733 F.2d at 851. Thus, the district court was un-

der no duty to investigate the allegations, and did not abuse

its diseretion in refusing to conduct an evidentiary hearing.

Ill

Appellants next contend that the indictment failed to

charge, and the evidence did not establish, a conspiracy to

defraud the United States. It is argued that a conspiracy

to defraud the United States must involve a knowing vio-

lation of a federal agency’s rules, regulations, or proced-

ures.’ The law does not, however, require such a showing.

1. In connection with this assertion, appellants a —- the

district court erred in excluding a letter from an

tative to Harry Wright, Seminole’s general manager. The letter

stated that Semi was not required to obtain REA —

of two of the contracts which had been awarded to Tanner

The letter also states that the bidding used for

(Continued on following page)

App. 11

Count I of the indictment charged appellants with

violating 18 U.S.C. $371. Seetion 371 provides in rele-

vant part:

If two or more persons conspire either to commit any

offense against the United States, or to defraud the

United States, or any agency thereof in any manner or

for any purpose, and one or more of such persons do

any act to effect the object of the conspiracy, each shall

be fined not more than $10,000 or imprisoned not more

than five years, or both.

18 U.S.C. § 371 (emphasis added). The Supreme Court

has construed section 371 as reaching “any conspiracy for

the purpose of impairing, obstructing, or defeating the

lawful function of any department of government.” Den-

nis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 1844,

16 L.Ed.2d 973 (1966). The Court has also explained what

types of fraud are contemplated by the statute:

To conspire to defraud the United States means pri-

marily to cheat the government out of property or

money, but it also means to interfere with or obstruct

one of its lawful governmental functions by deceit,

craft or trickery, or at least by means that are dishon-

est. It is not necessary that the government shall be

subjected to property or pecuniary loss by the fraud,

but only that its legitimate official action and purpose

shall be defeated by misrepresentation, chicane, or

the overreaching of those charged with carrying out

the governmental intention.

(Continued from previous page)

those contracts did not require REA approval. Had the -

ernment been required to show a knowing violation an

REA rule, regulation, or procedure, the letter would have

clearly been admissible. In light of our rejection of that con-

tention, however, we fail to see the error in its exclusion.

App. 12

Hammerschmidt v. United States, 265 U.S. 182, 188, 44

S.Ct 511, 512, 68 L.Ed. 968 (1924).

The conspiracy count in this case charged appellants

with conspiring to defraud the government by ‘‘impeding,

impairing, obstructing and defeating the lawful functions of

the Rural Electrification Administration in its administra-

tion and enforcement of its guaranteed loan program.”’

Count I also alleged twenty-five overt acts committed in

furtherance of the conspiracy. Listed among these overt

acts were the questionable business transactions which gave

rise to this case. The evidence is clearly sufficient to sup-

port the conclusion that these transactions occurred.

Appellants suggest that these transactions showed, at

the most, violations of Seminole’s conflict of interest policy,

not the existence of a conspiracy to defraud the REA. We

reject appellants’ contention that the indictment failed to

charge a crime under section 371. There is no requirement

in the statute, or in the cases construing the statute, that

the object of the conspiracy must be to cause a financial

loss to an agency of the government. United States v. Bur-

gin, 621 F.2d 1352, 1356 (Sth Cir. 1980); United States v.

Anderson, 579 ¥.2d 455, 458 (8th Cir.), cert. denied, 439

U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1978). Nor is there

any requirement that the indictment charge a knowing vio-

lation of an agency’s rules, regulations, or procedures. The

statute is designed “to protect the integrity of the United

States and its agencies, programs, and policies.’ Burgin,

621 F.2d at 1356. Moreover, “‘(t]he United States has a

fundamental interest in the manner in which projects re-

ceiving its aid are conducted. This interest is not limited

strictly to accounting for United States Government funds

invested in the project, but extends to seeing that the entire

App. 13

project is administered honestly and efficiently and without

corruption and waste.’’ Umited States v. Hay, 527 F.2d

990, 998 (10th Cir. 1975), cert. denied, 425 U.S. 935, 96 S.Ct.

1666, 48 L.Ed.2d 176 (1976) (citing United States v. Thomp-

son, 366 F.2d 167 (6th Cir. 1966), cert. denied, 386 U.S. 945,

87 S.Ct. 980, 17 L.Ed.2d 875 (1967)). It is undisputed that

the money used to construct the power plant was borrowed

from the Federal Financing Bank, which is an agency of the

United States Treasury; nor is it disputed that the loan

was guaranteed by the REA, which is also an agency of the

federal government. The evidence supports the conclusion

that Tanner and Conover engaged in collusive and dishonest

business practices. This constituted a fraud on the United

States under section 371.

IV

Appellants next contend that the evidence is insuffi-

cient to support their convictions? on the mail fraud viola-

tions alleged in counts II through V. The mail fraud sta-

tute, 18 U.S.C. § 1341, prohibits the use of the mails for the

purpose of executing any scheme or artifice to defraud. The

indictment charged that appellants used the mails for the

purposes of (1) defrauding ‘‘the United States by imped-

ing, impairing, obstructing and defeating the lawful func-

tion of the (REA) in its administration and enforcement

of its guaranteed loan program ;’’ and (2) defrauding Semi-

nole ‘‘of its right to have its process and procedures for the

2. Conover was convicted on each of the mail fraud violations

in counts Il through V. Tanner was convicted on the

il fraud violations alleged in counts Il, IV, and V; he was

acquitted on count Ill.

App. l4

procurement of materials, equipment and services run hon-

estly and free from deceit. . . ."’

Appeilants argue that the convictions ov counts II

through V can be upheld only if the evidence establishes

that they used the mails in effectuating a scheme to de-

fraud Seminole. This is so, appellants contend, because the

indictment did not charge, and the evidence did not estab-

lish, a violation of 18 U.S.C. 4371. We have already re-

tion of whether the evidence establishes the use of the mails

for the purpose of effectuating a scheme to defraud Semi-

nole. The convictions can be affirmed if the evidence estab-

lishes the use of the mails in effectuating a scheme to de-

fraud the United States by ‘‘impeding, impairing, obstruct-

ing and defeating the lawful function of the [REA) in its

administration and enforcement of its guaranteed loan pro-

gram’”’ as charged in counts II through V. In other words,

the mail fraud convictions should be affirmed if the evi-

dence establishes the use of the mails in connection with the

section 371 violation alleged in count I.

Appellants do not contend that the mailings referred

to in counts Il through V did not oceur. Nor is it argued

that these mailings were not made in connection with the

transactions which support their convictions on count I of

the indictment. In order for the mail fraud convictions to

stand, it must be shown that the use of the mail played an

‘‘integral’’ role in the scheme. See United States v. Bosby,

675 F 2d 1174, 1183 (11th Cir. 1982) (citing United States v.

Bethea, 672 F.2d 407, 410, (Sth Cir. 1982)). The govern-

ment contends that the mailings played an integral role in

the scheme by tending to create an “aura of legitamacy,”’

App. 15

see Bosby, 675 F.2d at 1183, around the transactions. We

agree. Consequently, we affirm Conover’s convictions on

counts II through V, and Tanner's convictions on counts

Il, TV, and V.

Vv

Lastly, appellants argue that the district court made

a number of erroneous evidentiary rulings. First, appel-

lants point to seventeen instances in which the district

court excluded evidence tending to prove that the materials

supplied by Tanner were adequate and reasonably priced.

We fail to see the relevancy of this evidence. The govern-

ment’s case was based on allegations of commercial! bribe-

ry and bid-rigging ; whether Seminole received a good bar-

gain as a result of this conduct simply has no bearing on

whether these activities actually occurred. The district

court did not err in excluding this evidence.

Appellants next contend that the district court im-

properly limited their cross-examination of government

witness Albert Guthrie. During the cross-examination of

Guthrie, the defense brought out that Guthrie was being

investigated for criminal tax fraud, that was testifying

under a grant of use immunity and that he was testifying

pursuant to a court order. Guthrie also stated that in his

opinion, he would not be prosecuted for tax fraud because

he agreed to testify. Guthrie denied that he was under in-

vestigation for anything else, and denied that he had told

anyone that he was under investigation for anything else.

Appellants argue that the district court abused its dis-

cretion in not permitting defense counsel! to continue to

interrogate Guthrie concerning other investigations. We

disagree. Guthrie had already denied having knowledge

App. 16

of any other investigation. Moreover, the district court

had already permitted a wide range of cross-examination

concerning Guthrie’s promise of use immunity. The dis-

trict court’s ruling did not constitute an abuse of discre-

tion.

Appellants’ last contentions concerns the testimony

of Donald Gilbert, a private investigator who had been

hired to investigate the relation between Tanner and Con-

over. The district court permitted Gilbert to testify that

after making his investigation, he concluded that there

was ‘‘collusion’’ between Conover and Tanner. In light

of the context in which this statement was made, the length

of the trial, and the other evidence supporting the con-

clusion that there was collusion between Tanner and Con-

over. we conclude that the error, if any, in the admission

of this testimony was harmless. See FED.R.CRIM.P.

52(a).

VI

For the reasons set forth above, the convictions are af-

firmed.

AFFIRMED.

JAMES C. HILL, Cireuit Judge, specially concurring:

Although I do not believe 18 U.S.C. § 371 should bo

construed to penalize the conspiracy proved in this case,

I concur in the judgment of the court because this panel

is bound by the decision of the Fifth Circuit in Usited

States v. Burgin, 621 F.2d 1352 (Sth Cir.), cert. denied,

449 US. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980), which

is inconsistent with the views I express below.

App. 17

Section 371 criminalizes conspiracies ‘‘to defraud the

United States, or any agency thereof in any manner or

for any purpose.”’ It does not criminalize a conspiracy to

defraud a private party. The evidence in this case was

sufficient to prove that the defendants conspired to de-

fraud Seminole Electric. In my view, however, the prose-

eution did not prove a conspiracy to defraud the govern-

ment of the United States.

It has long been the case that the prosecution need not

show any monetary or property loss to the federal govern-

ment to sustain a conviction for conspiracy to defraud

the United States under section 371. Haas v. Henkel,

216 U.S. 462, 479, 30 S.Ct. 249, 253, 54 L.Ed. 569 (1910).

In Hammerschmidt v. United States, 265 U.S. 182, 44 S.Ct.

511, 68 L.Ed. 968 (1924), the Supreme Court announced

that to prove a violation of section 371, ‘‘[i}t is not neces-

sary that the government shall be subjected to property or

pecuniary loss by the fraud, but only that its legitimate

official action and purpose shall be defeated by misrepre-

sentation chicane, or the overreaching of those charged

with carrying on the governmental intention.’ 265 U.S.

at 188, 44 S.Ct. at 512. More recently, the Court reiterated

that the statutory language reaches ‘‘any conspiracy for

the purpose of impairing, obstructing, or defeating the

lawful function of any department of government.’’ Den

nis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 16

L.Ed.2d 973 (1966) (quoting Haas v. Henkel, 216 US. at

479, 30 S.Ct. at 254). No Supreme Court decision has

upheld a conviction under section 371, however, where the

defendants neither defrauded the federal government of

its funds or property nor interfered with United States

App. 18

government officials or their agents performing an official

function of the federal government.

As the court’s opinion in this case notes, Seminole

Electric was the recipient of a loan made by one federal

government agency and guaranteed by another. Moreover,

as would be expected in any such lending arrangement,

the federal government was entitled to exercise a signifi-

cant degree of control over the means by which the funds

it was providing would be utilized. Intellectual honesty

compels me to find those facts sufficient to bring the fraud

committed in this case within the ambit of section 371, as

that statute was construed by the Fifth Circuit in Burgin

v. United States, 621 F.2d 1352. In Burgin the government

proved that the defendants, who included a state senator,

conspired to use the senator's position in state government

to exert undue influence upon officials of the state agency

responsible for administering a Head Start training pro-

gram in that state. The court quite aptly described the

scheme designed and executed by the defendants as ‘‘in-

fluence peddling of the rankest kind.’’ The federal govern-

ment provided 75% of the funding for the state contracts

that were improperly sought and retained by the defen-

dants in that case. and the United States Department of

Health, Education and Welfare apparently was entitled

to approve the proposals that were later reduced to con-

tracts hetween the state and the company the conspirators

were seeking to benefit. Although the defendants did not

conspire to exert any influence whatsoever, undue or other.

wise, upon the federal government, and no pecuniary loss

to the government was shown, the court nonetheless upheld

their conviction under section 371 for conspirac, to defraud

the United States.

App. 19

According to the court's opinion in Burgin, “‘(t)he

indictment in this case charged overreaching of an agent

of the United States by a public official having a financial

quid pro quo interest in a federally financed contract.”’

621 F.2d at 1357. Of course, where a state or private

party is simply acting as an agent of the United States

government in the implementation of a truly federal pro-

gram, a fraud upon the agent may constitute a fraud upon

the United States. But in my view, the courts should not

generally find such an agency relationship in the absence

of compelling evidence that the state or private party was

in fact defrauded while acting as a mere agent of the fed-

eral government performing a constitutionally legiti-

mate and duly authorized function of the federal govern.

ment. rather than as a non-federa! entity receiving some

form of federal assistance. Complete ownership or control

of a nominally private entity by the federal government

might serve as evidence of such a relationship. See U'msted

States v. Walter, 263 U.S. 15, 18, 44 S.Ct. 10, 11, 68 L.Ed.

137 (1923) (holding statute reached conspiracy to defrand

the United States Emergency Fleet Corp.. of which the

United States owned 100% of the stock, where ‘‘the con-

templated fraud upen the corporation if successful would

have resulted directly in a pecuniary loss to the United

States, and even more immediately would have impaired

the efficiency of its very important instrument’’). Ex-

tensive federal regulation of the state or private entity's

activities on behalf of the federal government would also

tend te support a conviction under section 371 for commit.

ting a frand most directly wpon a private party, bot in-

directly upon the federal government as well. See United

States v. Gold, 743 F.2d 800 (11th Cir.1984), cert. denied,

App. 20

— US. —, 105 S.Ct. 1196, 84 L.Bd.2d 341 (1985), (uphold-

ing conviction for defranding the United States in violation

of section 371 by conspiring to file false Medicare claims

with private intermediary that received, adjudicated and

paid such claims under contract with federal government

agency). Federal government assistance, however, ac-

companied by only a modicum of federal supervision of

the non-federal entity's activities, seems patently insuffi-

cient to render a frand upon that entity a fraud upon the

United States.

By artful lawyering, one might easily blur the dis-

tinction between the United States government and those

receiving its support beyond clear recognition. Coarts

must always remain mindful, however, of the admonition

that penal statutes are to be strictly construed, a rule that

is ‘‘perhaps not mach less old than construction itself.’’

United States o. Wiltherger, 18 US. (5 Wheat.) 76, %,

5 L.Ed. 37 (1820) (Marshall, CJ.). That well-known rule

of constraction is bet a corollary to the comparably ven-

erable “‘void for vagueness” doctrine of constitutional

law. “‘(A) statute which either forbids or requires the

doing of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning and

differ as to its application, violates the first essential of

due process of law."’ Connally . General Construction

Co... 9 US. 385, 391, 4 S.Ct. 1296, 127, 70 L.Ed 222

(1926). See generally Goldstein, Conspiracy to Defraud

the United States, 68 Yale LJ. 406, 441-48 (1959). Thus

it is essential that section 371 “‘plainly and unmistak-

ably’ proseribe the conduct of defendants before they

are punished for its violation Ser (sited States v. Grad-

well, 243 US. 476, 485, 37 S.Ct. 407, 490, 61 L.Ed 857

App. 21

(1917); United States v. Porter, 591 F.2d 1048, 1055 (5th

Cir.1979). Courts may necessarily find it difficult to

formulate and apply a definition of ‘‘defraud,’’ as that

term is used in section 371, that men and women ‘‘of com-

mon intelligence’’ will easily understand. See Goldstein,

supra, at 443. ‘‘The United States,’’ however, is a term

that need not be so broadly and mysteriously defined.

Appellants have defrauded Seminole Electric. Sem-

inole Electric is neither an agency of the federal govern-

ment nor its representative performing a duly authorized

federal governmental function. Rather, under the Rural

Electrification Act Congress has deliberately avoided un-

dertaking the construction of rural power plants as a fed-

eral government enterprise. I have little doubt that Con-

gress has an interest in ‘‘seeing that the entire project

[receiving its aid] is administered honestly and efficiently

and without corruption and waste.’’ United States v.

Hay, 527 F.2d 990, 998 (10th Cir.1975), cert. denied, 425

U.S. 935, 96 S.Ct. 1666, 48 L.Ed.2d 176 (1976). But in

section 371 Congress obviously did not criminalize every

conspiracy with the intent or effect of thwarting that ob-

jective. Congress has demonstrated well its ability to

utilize the criminal law to protect its far-flung financial

and other interests in non-federal programs or entities.'

or use

statements “in any matter within the jurisdiction of any de-

partment or agency of the United States.” 18 U.S.C. § 1001

al statutes are more specific. It is a federal

(Continued on following page)

App. 22

Becanse it has not done so here, section 371 should not

be construed to reach appellants’ acts.

(Continued from previous page)

credit, or insured by such Department.” 18 U.S.C.

§ 1010 (1982). Federal law prescribes criminal penalties for

knowingly making false statements in-

fluencing various actions F.D.1.C.

work performed or to be performed, or materials furnished

or to be furnished, in connection with the construction of any

highway or related proj by the Secretary of Trans-

App. 23

SWORN STATEMENT

DANIEL MARTIN HARDY

PERSON INTERVIEWED: Daniel Martin Hardy.

DATE OF INTERVIEW: October 15, 1984.

PLACE OF INTERVIEW: Holiday Inn, Interstate

4, Plant City, Florida.

PERSONS PRESENT: Daniel Martin Hardy, 0.

Douglas Beard, Investigative Research, Inc., and Walter E.

Taylor, Investigative Research, Inc.

INTERVIEWED BY: 0. Douglas Beard, Investiga-

tive Research, Ine.

Mr. Beard: Mr. Hardy, I have explained to you that

I am a private investigator. I’ve also explained to you that

Mr. Taylor is a private investigator. I believe that you

know my face from having seen me during the trial of

Anthony Tanner that took place in Tampa, Florida, during

February and March, 1984. Do you recognize my face, do

you know who I am?

Mr. Hardy: Yes.

Mr. Beard: I’m sorry?

Mr. Hardy: Yes.

Mr. Beard: All right, Mr. Hardy, thank you, I ap-

preciate your picking up your voice as much as you can so

it can be clearly understood. Mr. Hardy, I’ve explained to

you today that I am here at the request of Attorney David

Best, who was Mr. Tanner’s defense council. Do you under-

stand that?

Mr. Hardy: Yes.

App. 24

Mr. Beard: I have also explained to you that our con-

versation is being tape recorded at this moment. Do you

understand that?

Mr. Hardy: Yes.

Mr. Beard: Do I have your permission to record our

conversation?

Mr. Hardy: Yes.

Mr. Beard: All right. Mr. Hardy, I am a Notary Pub-

lic in the State of Florida. Do you know what a Notary

Public is?

Mr. Hardy: Yes.

Mr. Beard: Essentially, a Notary Public is empow-

ered to swear individuals to their statements. Do you un-

derstand that?

Mr. Hardy: Yes.

Mr. Beard: Would you raise your right hand for me

please, Mr. Hardy, Knowing that I am a Notary Public, do

you swear to tell the truth and nothing but the truth?

Mr. Hardy: Yes.

Mr. Beard: All right. Mr. Hardy, I’d like to talk to

you first about your most recent meeting with David Best

in Crystal River, Florida. Do you recall such a meeting?

Mr. Hardy: Yes.

Mr. Beard: How did the meeting come about?

Mr. Hardy: I seen Mr. Best on the side of the road.

Mr. Beard: All right, can you be a little bit more

specific? Did you just happen to be in Crystal River?

App. 25

Mr. Hardy: Right.

Mr. Beard: All right. Were you there alone?

Mr. Hardy: No.

Mr. Beard: Who was with you?

Mr. Hardy: My wife and son.

Mr. Beard: Did you go to Crystal River to see David

Best?

Mr. Hardy: No.

Mr. Beard: Do I understand you correctly that your

seeing David Best initially was pure circumstance?

Mr. Hardy: Right.

Mr. Beard: You did not have an appointment?

Mr. Hardy: No.

Mr. Beard: Once you saw Mr. Best in Crystal River,

did you make any attempts to personally speak with him?

Mr. Hardy: Yes.

Mr. Beard: When did the meeting occur?

Mr. Hardy: Saturday.

Mr. Beard: Are we talking about this past Satur-

day?

Mr. Hardy: Right.

Mr. Beard: So, it would have been two days ago, it

would have been October the 13th, is that correct?

Mr. Hardy: Right.

Mr. Beard: Where did you talk with Mr. Best?

App. 26

Mr. Hardy: In one of his homes.

Mr. Beard: Was this in Crystal River?

Mr. Hardy: Right.

Mr. Beard: What did you tell Mr. Best?

Mr. Hardy: - I told Mr. Best that I had some things

on my mind that had been bothering me a long time and I

wanted to clear my conscience.

Mr. Beard: All right. What was David Best’s re-

action?

Mr. Hardy: He asked me if I wanted to come in the

house. .

Mr. Beard: Did you go in?

Mr. Hardy: Yes. Reluctantly, but I did.

Mr. Beard: Did you go in voluntarily?

Mr. Hardy: Right.

Mr. Beard: All right. What did you tell Mr. Best?

Mr. Hardy: I told Mr. Best that I felt like that the

trial, the jury didn’t, I told him a lot of things, but the

main thing I...

Mr. Beard: Well, let’s just, let’s start kind of one

thing at a time, if we can. Did you discuss with Mr. Best

any specific thing relative to jury conduct that concerned

you?

Mr. Hardy: Right. Yes.

Mr. Beard: What did you talk about, with regard

to jury conduct?

Mr. Hardy: I told him that I felt like that the jury

was on one big party. .

App. 27

Mr. Beard: All mght. Mr. Hardy, let’s back up just

a moment. Were you a juror in the Anthony Tanner trial

that took place in February and March, 1984?

Mr. Hardy: Yes.

Mr. Beard: Were you one of the jurors who ulti-

mately rendered a verdict?

Mr. Hardy: Yes.

Mr. Beard: All right. Now, you told Mr. Best that

you felt the jury was on one big party, is that correct?

Mr. Hardy: Right.

Mr. Beard: Why did you feel that way?

Mr. Hardy: Because the actions that were being

conducted by the jurors.

Mr. Beard: All right. Specifically, with regard to

the jurors, what do you mean?

Mr. Hardy: Well, we all just, we used to go out to

lunch and drink alcohol.

Mr. Beard: All right, now you're talking about the

regular noon recess during the trial?

Mr. Hardy: Right.

Mr. Beard: When you say we, let’s be more specific.

Who do you recal! drinking alcoho! during lunch?

Mr. Hardy: Three, the three other male jurors and

three of the women.

Mr. Beard: All right, Mr. Hardy, is it your recollec-

tion that there were four male jurors. including yourself?

App. 28

Mr. Hardy: Right.

Mr. Beari: Would you please describe for me, the

other three male jurors, either by name or physical descrip

tion.

Mr. Hardy: One of them was a transmission me-

chanic in St. Petersburg, I believe his name was John.

Mr. Beard: What did he look like?

Mr. Hardy: He was a relatively younger individual,

as myself.

Mr. Beard: Did he have blond hair?

Mr. Hardy: Long, straight blond hair.

Mr. Beard: All right, go ahead.

Mr. Hardy: And the other one was Craig, which

worked for GTE, he lived in Largo, and another guy, which

owned a carpet cleaning business out of Bradenton,

Florida.

Mr. Beard: Do you recall his name?

Mr. Hardy: No, I don’t.

Mr. Beard: Do you recall what he physically looked

like?

Mr. Hardy: Yes, I do.

Mr. Beard: Would you please describe him?

Mr. Hardy: He was about five foot seven, had black,

about a hundred and eighty, sixty, seventy pounds, had

Mr. Beard: All right. Now, I want to make sure I

understend you correctly. Are you telling me that you,

App. 29

John, Craig, and the carpet cleaner all consumed alcohol

during the noon recess while the trial was going on?

Mr. Hardy: Yes.

Mr. Beard: All right. Now, how much alcohol are

we talking about, Mr. Hardy?

Mr. Hardy: Anywhere from a pitcher to three pit-

chers, depending upon how we felt.

Mr. Beard: Three pitchers of what?

Mr. Hardy: Budweiser.

' Mr. Beard: Did you all drink Budweiser?

Mr. Hardy: Yes.

Mr. Beard: Did you participate equally with regard

to your drinking? Did all four of you drink the beer?

Mr. Hardy: Yeah, but we didn’t participate equally,

I think we didn’t consume the same amount, some con-

sumed more.

Mr. Beard: Who were the heavier drinkers in the

group?

Mr. Hardy: The guy that owned the carpet cleaning

store, and John, the guy that was a transmission mechanic

that lived in St. Petersburg.

Mr. Beard: All right, it was your impression that the

carpet cleaner and John from St. Petersburg consumed

more than you and Craig?

Mr. Hardy: Right.

: Mr. Beard: All right. Now, you mentioned earlier

that there were three female jurors who also drank. Would

you please describe for me who those three women were!

App. 30

Mr. Hardy: Well, two of them I would have to see

their face again to (UNINTELLIGBLE), it’s been a long

time. But one specifically, because I felt like to me as much

as she corswmed all the time, she had to be an alcoholic.

Mr. Beard: All right. Would you describe for me

this lady who you would consider to be an alcoholic!

Mr. Hardy: About five foot two and two hundred

pounds.

Mr. Beard: Did she, was she on the jury from the be-

ginning?

Mr. Hardy: Yes.

Mr. Beard: Was she an alternate?

Mr. Hardy: Yes.

Mr. Beard: Did she ultimately get on the jury?

Mr. Hardy: ‘>

Mr. Beard © ) = « d this happen?

Mr. Hardy: ©» Craig asked to be dismissed for

vacation purposes.

Mr. Beard: All right. Who was the foreman of the

jury?

Mr. Hardy: She was.

Mr. Beard: All right. When you say she, you mean

the lady that you've just described who consumed a lot

of aleohol?

Mr. Hardy: Yes.

App. 31

Mr. Beard: All right. Now, Mr. Hardy, when we're

talking about, or when you are talking about a quantity

of alcohol, how much do you mean?

Mr. Hardy: A liter.

Mr. Beard: A liter of what?

Mr. Hardy: Wine.

Mr. Beard: How often did you go to lunch with the

lady who ultimately ended up as the foreman of the jury?

Mr. Hardy: Three times.

Mr. Beard: Did you see her drink on each of those

occasions?

Mr. Hardy: Yes, I did.

Mr. Beard: Did she drink the same amount on each

occasion?

Mr. Hardy: Yes, she did. One time we seen them,

we wasn't with them, we was in the same place, but we

were at different tables, on about five or six other oc-

casions.

Mr. Beard: All right. On each occasion that you

accompanied this lady and on each occasion that you ob-

served her, was she drinking wine?

Mr. Hardy: Yes.

Mr. Beard: Did she order the same quantity?

Mr. Hardy: Yes.

App. 32

Mr. Beard: Was it a liter?

Mr. Hardy: Yes.

Mr. Beard: Did you observe her drink the liter?

Mr. Hardy: Yes. Mostly the two other women were

given a mixed drink, maybe one or two a piece.

Mr. Beard: All right.

Mr. Hardy: I never seen more than two though.

Mr. Beard: Okay. Dan, have you had any contact

with Anthony Tanner since the trial?

Mr. Hardy: No. I never had no contact with Anthony

Tanner. =

Mr. Beard: Have you had any contact with David

Best, other than this Saturday meeting that you initiated?

Mr. Hardy: No.

Mr. Beard: Has anyone encouraged you to meet with

Mr. Best?

Mr. Hardy: No.

Mr. Beard: All right. Mr. Hardy, I want to talk to

you now about something we just discussed previously

with regard te John, the voung transmission mechanic who

was a member of the jury. During the course of the trial,

did you become aware that John was smoking marijuana!

Mr. Hardy: Yes, I did.

Mr. Beard: How did you become aware of that!

Mr. Hardy: When we went to lunch or after the trial

we would «it around and talk and he would ask us did

we want to stoke, burn one with him, smoke one with him.

App. 33

Mr. Beard: All right. Now, let me stop for just a

minute. When you say we, who are you talking about?

Mr. Hardy: All of the four male jurors.

Mr. Beard: Okay, and now we're talking specifically

about John, do I understand you correctly that John

offered you marijuana!

Mr. Hardy: Yes.

Mr. Beard: Did he offer Craig and the carpet clean-

er marijuana?

Mr. Hardy: Yea, he did.

Mr. Beard: Did any of vou either singly or together

during the trial, smoke marijuana?

Mr. Hardy: They did. I did on one occasion.

Mr. Beard: All right. Now, when you say they, Mr.

Hardy, are vou talking about .. .

Mr. Hardy: The four male, the three other male

jurors.

Mr. Beard: All right. Did you see the marijuana

being smoked?

Mr. Hardy: Yes. I did.

Mr. Beard: Where did this happen? And let's talk

about each separate instance separately, when is the first

tome during the trial that marijuana was made available

to you by John?

Mr. Hardy: About the second week.

Mr. Beard: And how did it occur?

App. #4

Mr. Hardy: We was at lunch talking, and just one

thing led te another.

Mr. Beard: What did John say?

Mr. Hardy: He asked us did we party very moch.

Mr. Beard: And what happened as a result of that?

Mr. Hardy: Everybody said yeah And he asked

us did we want te go bern one with him.

Mr. Beard: This was the second week of the trial?

Mr. Hardy: Right.

Mr. Beard: De you recall where you were when this

conversation took place!

Mr. Hardy: Yes.

Mr. Beard: Where?

Mr. Hardy: Franklin Mall, Franklin Street mail.

Mr. Beard: Specifically, what store?

Mr. Hardy: Well, I dom't know what store, bat we

was standing out beside some sandwich shop, Fish and

Chips, whatever, I can't specifically think of the name,

but I know the place was we went there and went and

got us, we went through and got Arthar Treecker’s, I

think that’s what it ix, Pish and Chips.

Mr. Beard: So, it was at that lecation that John

first mentioned the availability of marijuana?

Mr. Hardy: Right

Mr. Beard. Did be have marijeana with him that day

te offer?

Mr. Hardy: Yee

App. 35

Mr. Beard: Where did you go to smoke it?

Mr. Hardy: To the parking garage.

What parking garage are you talking

Beard

Hardy: The City of Tampa.

Mr. Beard: Where is that located?

Hardy: Twigg Street.

Beard: What street?

Mr. Hardy: Twigg.

Mr. Beard: Twigg Street? Mr. Hardy, how did you

happen to select that parking garage?

Mr. Hardy: We had to park there.

Mr. Beard: All right. This is where your cars were

parked?

Mr. Hardy: Right.

Mr. Beard: Did John have to go to his car to get

the marijuana?

Mr. Hardy: At first.

Mr. Beard: All right. Did you all four participate

Mr. Hardy: No.

Mr. Beard: All right. That was the first time, right?

Mr. Hardy: Right.

Mr. Beard: Who did participate!

Mr. Hardy: John and the guy from Bradenton.

App. 36

Mr. Beard: All right, John and the guy from Braden-

ton? Can you be more specific about the guy from Braden-

ton? Who is that?

Mr. Hardy: He owned the carpet cleaning store, the

carpet cleaning business.

Mr. Beard: All right. Did John give the juror from

Bradenton and Craig the marijuana?

Mr. Hardy: Craig didn’t smoke none the first time.

Mr. Beard: All right, it was just John and the man

from Bradenton?

Mr. Hardy: Right.

Mr. Beard: Was the marijuana free or did you

have to pay for it?

Mr. Hardy: It was free.

Mr. Beard: All right. How much marijuana was con-

sumed on that first occasion?

Mr. Hardy: One cigarette.

Mr. Beard: And what happened after that was

finished?

Mr. Hardy: We went back to the courthouse.

Mr. Beard: All right. Was that marijuana consumed

after the four of you had been drinking beer?

Mr. Hardy: Yes, it was.

Mr. Beard: Okay. Mr. Hardy...

Mr. Hardy: No, it wasn’t, I’m sorry, we didn’t drink

none that day. I’m sorry, we didn’t, we didn’t drink none

that day. We didn’t have time.

App. 37

Mr. Beard: Okay. All right. When is the second

time that you can recall marijuana being offered?

Mr. Hardy: The next day.

Mr. Beard: Who offered marijuana?

Mr. Hardy: John.

Mr. Beard: How did it, how did the subject come up?

Mr. Hardy: He asked us did we want to go to smoke

one with him again while we were at the Hyatt Regency

Hotel.

Mr. Beard: Was this during lunch?

Mr. Hardy: Right.

Mr. Beard: Had you consumed any alcoho! at the

Hyatt Regency?

Mr. Hardy: Yes, we had.

Mr. Beard: How much?

Mr. Hardy: One pitcher.

Mr. Beard: One pitcher between the four of you?

Mr. Hardy: Four of us, yes.

Mr. Beard: All right. Did you or any of the group

then go and smoke marijuana?

Mr. Hardy: Yes, we all did.

Mr. Beard: All right, where did you go?

Mr. Hardy: To the parking garage.

Mr. Beard: Did John have the marijuana in his car?

Mr. Hardy: Yes.

App. 38

Mr. Beard: Did he offer it free?

Mr. Hardy: Yes, he did.

Mr. Beard: How much marijuana was consumed?

Mr. Hardy: One cigarette.

Mr. Beard: Where did you go after you finished?

Mr. Hardy: Back to the courthouse.

Mr. Beard: When is the third time that you can re-

call marijuana being offered?

Mr. Hardy: The next day. This was a frequent oc-

ca sion.

Mr. Beard: All right. This was a frequent occasion?

Okay,-to avoid repeating this, Mr. Hardy, did John always

keep the marijuana in his car?

Mr. Hardy: The first week he did, then he started

taxing it with him ‘cause we didn’t want to have to walk

to the parking garage anymore.

Mr. Beard: So, Mr. Hardy had the marijuana with

him in the courtroom?

Mr. Hardy: Right.

Mr. Beard: Where did the four of you go to smoke

marijuana after that?

Mr. Hardy: Down past the Hyatt Regency.

Mr. Beard: Specifically, where?

Mr. Hardy: I don’t know the road, it was past the

hotel on the other side.

Mr. Beard: Was it a quiet place?

App. 39

Mr. Hardy: Yeah, away from everybody.

Mr. Beard: Mr. Hardy, how often did this oceur dur-

ing the course of the trial, with regard to smoking mari-

juana?

Mr. Hardy: Just about every day except on maybe

three or four occasions, five or six occasions, maybe, I

would say when me and Craig didn’t go with them.

Mr. Beard: All right, so, this began during the sec-

ond week of trial, went through the entire trial. is that

correct?

Mr. Hardy: Right.

Mr. Beard: With the exception of five or six oc-

easions when you and Craig did not participate?

Mr. Hardy: Right, we were scared.

Mr. Beard: You were scared?

Mr. Hardy: Right.

Mr. Beard: Okay. Mr. Hardy, did there come a time

during your association with the juror who we've identified

as John, that you became aware that John was injesting

cocaine during the noon hour?

Mr. Hardy: Yes.

Mr. Beard: Would you tell me about that please, sir?

Mr. Hardy: Well, he asked us did we want any toot.

Mr. Beard: Did you want any toot?

Mr. Hardy: Right. When we found that out we

didn’t have too much to do with him no more.

App. 40

Mr. Beard: All right. Mr. Hardy, did a, at any

time, see John injest cocaine?

Mr. Hardy: Yes, sir.

Mr. Beard: Would you explain that to me, when it

occurred and where it occurred?

Mr. Hardy: At lunch, at the parking garage, in his

Mr. Beard: All right. Was there anyone present

besides you and John?

Mr. Hardy: Yes. All three of the other, all four

male jurors were there.

Mr. Beard: How much cocaine was injested by John?

Mr. Hardy: A pretty good bit, I would say. Of

course I don’t know too much about it.

Mr. Beard: Did John offer cocaine to any of the

rest of you?

Mr. Hardy: Yeah, all of us.

Mr. Beard: Did anyone else participate?

Mr. Hardy: Yes, the guy from Bradenton that owned

the carpet cleaning business.

Mr. Beard: Did John offer cocaine free of charge

or was he selling it?

Mr. Hardy: Both.

Mr. Beard: Can you be more specific with me?

Mr. Hardy: Well, he offered it free of charge, he

offered it to us free of charge on the oceasiors when we

App. 41

were there, then he wanted to know did we want to buy

any of it, plus he wanted to know did we want anv mari-

juana too, and some did, was sold, I never seen it, but I

heard him talk about it.

Mr. Beard: You heard who talking about it?

Mr. Hardy: John and the guy from the carpet clean-

ing store, he wanted to know if he wanted to buy a quar-

ter pound.

Mr. Beard: To your knowledge ...

Mr. Hardy: No, the guy asked him did he have, did

he know where he could get a querter of a pound.

Mr. Beard: Who is the guy?

Mr. Hardy: The guy from the carpet cleaning store

in Bradenton, the carpet cleaning business.

Mr. Beard: All right. Do I understand you correct-

ly that the juzor from Bradenton, who owned the carpet

cleaning business, inquired of John, also another juror, as

to where he, meaning the carpet cleaner, could buy mari-

juana?

Mr. Hardy: Right.

Mr. Beard: And what did John tell him?

Mr. Hardy: He had it.

Mr. Beard: Did John tell the carpet cleaner that he

would sell him marijuana?

Mr. Hardy: Yes, he did.

Mr. Beard: All right. How much did you observe

the carpet cleaner injest, with regard to the cocaine?

App. 42

Mr. Hardy: 1 would say a couple lines.

Mr. Beard: A couple of lines? What do you mean

by a line, Mr. Hardy?

Mr. Hardy: Well, they would get a razor blade and

chop it up and then make lines out of it.

Mr. Beard: Can you explain to me physically what

we're talking about? When you say they, do you mean

John and the carpet cleaner!

Mr. Hardy: John and the carpet cleaner.

Mr. Beard: Where was this déne?

Mr. Hardy: In the parking garage.

Mr. Beard: Was it done in the car?

Mr. Hardy: Right.

Mr. Beard: What kind of a car does John drivet

Mr. Hardy: He drives a Gremlin.

Mr. Beard: What color is it?

Mr. Hardy: Brown.

Mr. Beard: Where did he keep the narcotics!

Mr. Hardy: In his glove compartment.

Mr. Beard: How were the narcotics packaged, and

when we're talking about packaging, talk first about the

marijuana, second about the cocaine. How was the mari-

juana packaged!

Mr. Hardy: It was in a, he kept it like, | would say

a prescription bottle.

App. 43

Mr. Beard: Was there a lot of marijuana?

Mr. Hardy: Just four or five things, maybe, he got

four or five cigarettes out of it.

Mr. Beard: All right. With regard to the cocaine,

how was that packaged?

Mr. Hardy: Well, he had it in a bag, you know, in a

couple of thin, then later on he would bring a contraption

that he had, I guess his wife called it, it had a bottle that

you would serew onto the top of it and he would turn a

handle on it down, and turn it upside down and that would

fill up, would fill up, I don’t knew how to say it, it would

fill up & compartment in it, then he would turn it wp and

then he would stick it up to his nose and suck on it or hit

it, or whatever, up his nose.

Mr. Beard: Did you see John physically perform

that function on any oceasion?

Mr. Hardy: Yes, I did.

Mr. Beard: How many times?

Mr. Hardy: I'd say about five.

Mr. Beard: How many of those five times occurred

during the Anthony Tanner trial?

Mr. Hardy: All of them. The only time I'm talking

about is when it oceurred on the Anthony Tanner trial at

lunch time. It was done too, after the trial was over.

Mr. Beard: All right, for right now, let's stick spe

cifically to the lunch hour. Did you ever become aware

that the carpet cleaner from Bradenton was participating

in the cocaine injestion as well?

App. 44

| Mr. Hardy: Yes.

Mr. Beard: How often did you see that carpet

cleaner injest cocaine?

Mr. Hardy: Two or three times.

Mr. Beard: Where did the injestion take place?

Mr. Hardy: At the garage, parking garage.

Mr. Beard: All right, Mr. Hardy, explain to me if

you would, what happened once John took the cocaine out

of the glove compartment. Where did he put it and how

did he eut it?

Mr. Hardy: He put it on « mirror and took a razor

Mr. Beard: Where did he get the mirror?

Mr. Hardy: Out of his glove compartment.

Mr. Beard: Did he do it inside of the car or outside!

Mr. Hardy: Inside.

Mr. Beard: Did he divide the cocaine equally?

Mr. Hardy: No. He did more than what the guy

from the carpet cleaning business did.

Mr. Beard: All right. Mr. Hardy, was there ever an

occasion that the carpet cleaner from Bradenton and John,

the young man on the jury, injested cocaine after the four

of you had been consuming alcohol?

Mr. Hardy: Yea.

i

blade and chopped it up.

Mr. Beard: Was it frequent or infrequent?

App. 45

Mr. Hardy: It was frequent, most of the time we

went to lunch and ate and got us a beer and then we left

to go to the parking garage.

Mr. Hardy: Pitchers of beer.

Mr. Beard: So, after you consumed the pitchers of

beer, John and, on occasion, the carpet cleaner member of

the jury, injested cocaine, is that correct?

Mr. Hardy: That's right.

Mr. Beard: Were there occasions when all three

things were done? \leohol, marijuana, and cocaine!

Mr. Hardy: Yes, there was.

Mr. Beard: Mr. Hardy, were you able to discern a

change of attitude, a change in physical alertness, or any.

thing along those lines, with regard to John, the young

man on the jury, after he dran and injested either mari.

Juana or cocaine?

Mr. Hardy: Yeah, John just talked about how be

was flying.

Mr. Beard: All right. What did he mean by that,

in your opinion?

Mr. Hardy; Flying? I guess he was messed up.

Mr. Beard: Did John show any physical signs that

were obvious to you?

Mr. Hardy: To me, yes, maybe not to a normal per

son.

App. 4

Mr. Beard: What kind of signs? -

Mr. Hardy: Well, he just, he'd stutter a little bit,

you know, | know that they wes falling asleep all the

time during the trial.

Mr. Beard: When vou say they, who are vou talking

about?

Mr. Hardy: Most, some of the jurore. Like John

and the guy from the carpet cleaning store.

Mr. Beard: All right. Mr. Hardy, to your know.

ledge, did Craig ever take part in the cocaine injestion!

Mr. Hardy: No, he didn't.

Mr. Beard: Did you?

Mr. Hardy: No, I didn't. We didn't want to let

them find out that, we didn't really, once we seen that,

we didn't really want to get involved in that. Like I anid,

we were scared, we were scared that we was going to get

in trouble and we really didn't want to have too much

more to do with it after that. This went on about through

the middle of the trial.

Mr. Beard: All right. Mr. Hardy, have you had any

contact with any of the prosecutors since the verdict was

rendered?

Mr. Hardy: Yeo. I have.

Mr. Beard: Who initiated that contact!

Mr. Hardy: 1, meveel?.

Mr. Beard: Whe did vou call!

App. 47

Mr. Hardy: Mr. Runyon.

Mr. Beard: And what did you talk about!

Mr. Hardy: We talked about the alcohol consumption.

Mr. Beard. What did you tell Mr. Runyon?

Mr. Hardy: I told Mr. Runyon that we would just go

out and get us « pitcher of beer and drink it, but as far as

us being drunk, no we wasn't.

Mr. Beard: Did you tell Mr. Runyon about the mari.

Juana?

Mr. Hardy: No, I didn’t.

Mr. Beard: Did you tell Mr. Runyon about the co-

caine?!

Mr. Hardy: No, I didn’t.

Mr. Beard: Mr. Hardy, you have expressed to me to.

day this subject is not an easy one for you to discuss, is that

correct!

Mr. Hardy: Right, I feel like I'm patting my family

on the line.

Mr. Beard: Mr. Hardy, why are you talking to me

and Mr. Taylor today?

Mr. Hardy: Because | felt like that the people on the

jury didnt have no business being on the jury. I felt like

that Mr. Tanner should have a better opportunity to get

somebody that would review the facts right, that were able

to review the facts.

Mr. Beard: Mr. Hardy, I want to make sure | under.

stand you perfeetly .. .

App 48

Mr. Beard: Mr. Hardy, we have ewitehed to side 2 of

this tare, and | asked you before we turned the tape over

what motivated you to come forward? I want te make sure

| understand you clearly. Are you telling me that your

motivated by comsmence!

Mr. Hardy: Right. I wanted to clear my conscience.

Mr. Beard: Is there anything else that motivated you,

Mr. Hardy?

Mr. Hardy: Ne

Mr. Beard: Has anybody offered you anything of

value!

Mr. Hardy: Ne.

Mr. Beard: Has Mr. Tanner had any contact with you

and encouraged you to ome forward?

Mr. Hardy: No. The only time I ever seen Mr. Tan-

ner was at the tral

Mr. Beard: Has Mr. Best had any contact with you

and encouraged you to come forward?

Mr. Hardy: No, he hasn't.

Mr. Beard: All right. Whee I say contact, I mean

other than your mest recent Setarday contact?

Mr. Hardy: Right.

Mr. Beard: Has Mr. Best offered you anything to

come forward?

Mr. Hardy: No.

App. 49

Mr. Beard: Have Mr. Taylor or I offered you any-

thing of value to come forward?

Mr. Hardy: No.

Mr. Beard: Dan, a few minutes ago while we were

talking, I asked you to restrict your comments to activities

when you got together with other male or female jurors and

participated in the use of marijuana or other drugs after

the trial was completed for the day?

Mr. Hardy: Yes. I didn 't, not, I never participated

after, but it was done, I was there.

Mr. Beard: Tell me about those tines.

Mr. Hardy: A couple times we went to the Sheraton,

couple times we went to the Hyatt Regency and we just sit

talk about the trial and you know, just like friends getting

together.

Mr. Beard: All right. Mr. Hardy, when you say that

you sat around and talked about the trial, do you recall the

admonishment that Judge Crimsmon gave you and the other

jurors during the trial, and when I say gave it to you, I

mean gave it to you every time before you left the jury box

at lunch and at the end of the day and specificelly, with re-

gard to not discussing the case even among yourselves?

Mr. Hardy: Yes, I do.

Mr. Beard: Did you have occasions to discuss that

admonishment with other jurors?

Mr. Hardy: Yes, we did.

App. 50

Mr. Beard: What was the attitude?

Mr. Hardy: They can’t prove nothing.

Mr. Beard: Did members of the jury, in fact, discuss

the evidence routinely?

Mr. Hardy: Yes, they did.

Mr. Beard: When I say routinely...

Mr. Hardy: That was mostly the topic of the conver-

sation.

Mr. Beard: Did you talk about it on a daily basis?

Mr. Hardy: Yes, we did.

Mr. Beard: Were there times when the entire jury

got together for lunch and the subject of the trial was dis-

cussed?

Mr. Hardy: Yeah, but not the entire jury, | mean not

everybody, there was a few of the older women that went

their own ways.

Mr. Beard: All right.

Mr. Hardy: A couple of them, they were straight

down the line.

Mr. Beard: What do you mean by that, Mr. Hardy?

Mr. Hardy: Well, they were sticking to what we was

supposed to be done.

Mr. Beard: All right. Mr. Hardy, during the course

of the trial, did you become aware that the young blond

juror by the name of John was using cocaine during the

breaks in the trial?

Iain eee maaan

App. 51

Mr. Hardy: I felt like he was, I never seen him, but I

knew he had that little contraption and he was going to the

bathroom and come back down sniffing.

Mr. Beard: What do you mean come back out sniff.

ing?

Mr. Hardy: Well, he’d sniffing, you know, you know,

you know, like he got a cold, it would always seem like

always had a cold.

Mr. Beard: All right. Mr. Hardy, during the course

of the trial, did you learn that the young blond juror by the

name of John had, in fact, sold a quarter of pound of mari-

juana to the juror who was a carpet cleaner from Braden.

ton?

Mr. Hardy: Yes, I did.

Mr. Beard: How did you learn about that?

Mr. Hardy: ‘Cause he talked about it at lunch and he

went to his, he was supposed to meet him in, at his house in

St. Pete to pick it up.

Mr. Beard: Did you actually ue thir conversation?

Mr. Hardy: Yes, I did.

Mr. Beard: Was there anyone else present?

Mr. Hardy: Yes, there was.

Mr. Beard: Whot

Mr. Hardy: Craig.

Mr. Beard: Did John provide the carpet cleaner from

Bradenton with his home address?

Mr. Hardy: Yes, he did.

App. 52

Mr. Beard: Did you see him do that?

Mr. Hardy: Yes, I did, telephone number too.

Mr. Beard: Was there discussion,of price with regard

to this quarter pound or marijuana?

Mr. Hardy: Yes, there was.

Mr. Beard: How much?

Mr. Hardy: Two hundred and fifty doliars.

Mr. Beard: Was there discussion of price with regard

to cocaine at any time?

Mr. Hardy: Yes, there was.

Mr. Beard: Can you explain to me how that came

. about and what was discussed?

Mr. Hardy: He wanted to know if we wanted any

cocaine, he said that he had an ounce of it and he would sell

it to us for eighty dollars a gram.

Mr. Beard: Eighty dollars a gram?

Mr. Hardy: Right.

Mr. Beard: Who was offering the cocaine for sale?

Mr. Hardy: John.

Mr. Beard: When did these conversations take place?

Mr. Hardy: During the lugch hour and after the

break of the day.

Mr. Beard: Mr. Hardy, to your knowledge, do any of

the female jurors who were on the Tanner jury, have any

knowledge concerning marijuana or cocaine *

Mr. Hardy: No.

a

App. 53

Mr. Beard: Essentially, they know nothing about it

as far as you know?

Mr. Hardy: Right.

Mr. Hardy: I don’t know, just from what I got from

them, from the conversations was that they smoked it. That

you would smoke it, and cocaine is supposed to be cut and

you have to cook it down, or whatever to do with it to be

able to get the cut so you can get the pure cocaine out, that’s

what I got from the conversation.

Mr. Beard: Mr. Hardy, in your discussions or your

dealings with John, the young juror, blond juror, did you

ever observe any other method of injesting cocaine that

that would be wrapped around he would keep that and little

straw and a razor blade inside of a Sucrets package.

Mr. Beard: All right, let me talk to you about that

more specifically. Are we talking about a regular straw

that he would put up to his nose?

App. 54

Mr. Hardy: Right.

Mr. Beard: All right. Now, what were the other

pieces of equipment?

Mr. Hardy: A razor blade.

Mr. Beard: A razor blade? Where was the razor

kept?

Mr. Hardy: Inside the pack, inside the metal cases

that you'd buy Sucrets, | remember that, it was that you

would buy Sucrets throat lozenges with.

Mr. Beard: All right. Se, it was a small flat case?

What else was inside that Sucrets case?

Mr. Hardy: The cocaine too.

Mr. Beard: All right. What was the cocaine kept in!

Mr. Hardy: A sandwich baggie with the corner of the

sandwich baggie.

Mr. Beard: Mr. Hardy, I have no further questions

for you. Is there anything that you would like to add, other

than what we've already discussed?

Mr. Hardy: | would come forward a long time ago,

but | was seared because this is serious allegations being

made and that I didn't want to get involved, I was seared

of losing my job and putting my family on the line and +o

I just felt like that I should leave things alone and keep my

mouth shut and go on about my life, go on with my life.

Mr. Beard: Mr. Hardy, we've identified one of the

male jurors as a carpet cleaner from Brandenton. Do you

recall anything about his name?

App. 55

Hr. Hardy: Yes, I do.

Mr. Beard: What?

Mr. Hardy: His first name is Pat.

Mr. Hardy: Yes. That one day.

Mr. Beard: All right, when you say yes that one day,

are you telling me there was only one day that you con-

sumed both alcohol and marijuana?

Mr. Hardy: Marijuana, | consumed alcoho! all the

time.

Mr. Beard: All right. Was there only one day that

you did both?

Mr. Hardy: Right. Yes, that was in the middle of

the trial.

Mr. Beard: All right. Mr. Hardy, anything else you'd

like to add?!

Mr. Hardy: No.

Mr. Beard: All right, thank you, sir.

STATE OF FLORIDA

COUNTY OF HILLSBOROUGH

BEFORE ME, the andersigned authority, personally

appeared DANIEL MARTIN HARDY, who, after being

App. 56

duly sworn, deposes and says that he has read the above

and foregoing statement consisiting of thirty (30) pages,

tht he has persona! knowledge of the facts and matters set

forth therein, and that the statement is true and correct to

the best of his knowledge.

/s/ DANIEL MARTIN HARDY

Sworn to and subscribed before me, this 17 day of October,

A.D., 1984.

O. Douglas Beard

Notary Public, State of Florida at Large

NOTARY PUBLIC, State of Florida at Large

My Commission Expires July 13, 1985

Bonded by LAWYERS SURETY CORPORATION

My Commission Expires: