Opposition Brief — Westmoreland v. United States

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No. 87-1910 JUL 19- 1988

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In the Supreme Court of the Gnited

OCTOBER TERM, 1988

TRUDIE P. WESTMORELAND, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS, JR.

Acting Assistant Attorney General

KAREN SKRIVSETH

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether 18 U.S.C. (Supp. II) 666(b), relating to

bribery in connection with federally assisted programs, re-

quired that the government prove (1) that the specific

transactions in connection with which the bribery occurred

were funded by the federal government, and (2) that the

defendant received a bribe of at least $5,000.

2. Whether the district court properly admitted

evidence of prior misconduct by petitioner.

3. Whether the district court properly admitted

evidence regarding another person’s receipt of bribes.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Dixson v. United States, 465 U.S. 482 (1984) ........... 6

United States v. Biswell, 700 F.2d 1310 (10th Cir. 1983) .. 9

United States v. Duvall, No. 87-4663 (Sth Cir. May 24,

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Statutes and rules:

Comprehensive Crime Control Act of 1984, Pub. L. No.

Sears, am. Bh, © F906, SO Meat. 2143 2... cee 6

Criminal Law and Procedure Technical Amendments Act

of 1986, Pub. L. No. 99-646, § 59(a), 100 Stat. 3612 ... 5

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Fed. R. Evid.:

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Miscellaneous:

S. Rep. 98-225, 98th Cong., Ist Sess. (1983) ............ 6

(III)

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 87-1910

TRUDIE P. WESTMORELAND, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A18)

is reported at 841 F.2d 572.

JURISDICTION

The judgment of the court of appeals was entered on

March 23, 1988. The petition for a writ of certiorari was

filed on May 19, 1988. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of Mississippi, petitioner was

convicted on one count of improperly accepting money in

connection with transactions involving a beneficiary of

federal funds, in violation of 18 U.S.C. (Supp. I1) 666(b),

(1)

2

three counts of mail fraud, in violation of 18 U.S.C. 1341,

and two counts of extortion, in violation of 18 U.S.C.

1951. She was sentenced to nine years’ imprisonment and a

$10,000 fine on one of the extortion counts. Imposition of

sentence on the remaining counts was suspended in favor

of five years’ probation. Petitioner was also ordered to pay

restitution to the United States government of $1,702.

1. Petitioner was a county supervisor in Perry County,

Mississippi. She had the authority to purchase materials

for the county for road and bridge maintenance in her

district. In 1986 she accepted a total of $1,702 from FBI

undercover agent Jerry King, who was posing as a

salesman for Mid-State Pipe and Supply Company. The

payments were made in connection with the county’s pur-

chase of supplies from King’s company. In addition, the

evidence showed that petitioner accepted a total of $500 in

kickbacks from Ray Davis in connection with county pur-

chases of chemical supplies from him. Pet. App. A2.

During the one-year period in which the payments were re-

ceived, Perry County received federal revenue-sharing

funds totaling $222,949.00, and it allocated $36,391.55 of

those funds to petitioner’s district. Jd. at AS. Petitioner

authorized, and the county paid, a total of $14,482.92 for

the goods purchased in the transactions with which the

kickback payments were associated. /bid.

Petitioner’s defense at trial was that she was not

predisposed to commit the offenses but that she had been

entrapped by Agent King. Pet. App. Al4-A15. During

trial, the district court admitted, over petitioner’s objec-

tion, testimony by Agent King that before he initiated con-

tact with petitioner, he had a conversation with another

county supervisor, Junie Mixon, in which Mixon indicated

that petitioner might be willing to accept kickbacks. Davis

and King also testified about Mixon’s receipt of payments;

3

Davis’s testimony was given in the course of his explana-

tion that he made an indirect offer to pay a bribe to peti-

tioner by making reference to Mixon’s receipt of

payments. Jd. at Al3. The district court also admitted

evidence on rebuttal that petitioner had been investigated

for keeping fees she had received while serving as a local

justice court judge, even though those fees properly

belonged to the county. /d. at A10-A12.

2. The court of appeals affirmed (Pet. App. Al-A18).

It rejected petitioner’s contention that 18 U.S.C. (Supp.

Il) 666(b) required the government to show that federal

funds had been involved in the tainted transactions. The

court held that the statutory language was plain and

unambiguous in providing that, if an agency received

more than $10,000 a year in federal funds, the agency’s

employees were covered by the statute. The court found

that there was nothing in the statutory language or the

legislative history to suggest that the tainted transactions

themselves must have involved federal funds. Pet. App.

A6-A9. To the contrary, the court found that the

legislative history of Section 666 indicated that Congress

intended the statute to eliminate the need, found by some

courts under prior law, to trace federal funds to the trans-

actions that were affected by the employee’s misconduct.

Pet. App. A9.

The court of appeals also rejected petitioner’s challenges

to the admission of certain evidence. It found that the

evidence as to Junie Mixon was relevant to the issue

whether petitioner was entrapped and to counter peti-

tioner’s claim that because she was a new supervisor she

did not realize that she was being offered illegal payments.

Pet. App. Al3-Al4. The court noted that the evidence

regarding Mixon was a small part of the overall evidence

at trial and that the jury had been instructed that it should

4

return a verdict only on the offenses charged and should

not consider the conduct of other persons. The court fur-

ther found that the evidence against petitioner was over-

whelming and that it was highly unlikely that the jury con-

victed petitioner on the basis of the evidence relating to

Mixon. /d. at Al4-A15. The court also held that the

evidence regarding petitioner’s embezzlement of county

funds during the time she served as a justice court judge

was properly admitted under Fed. R. Evid. 404(b). The

court noted that the district court had weighed the pro-

bative value of that evidence against its possible pre-

judicial impact, that petitioner had an ample opportunity

to challenge the evidence, and that, even in light of peti-

tioner’s explanation of discrepancies in her financial

records as a justice court judge, the record was clear that

some discrepancies remained. Pet. App. Al1-A13.

ARGUMENT

1. Petitioner contends (Pet. 9-14) that 18 U.S.C.

(Supp. II) 666(b) was not intended to cover the situatiow in

which, although the governmental entity received more

than $10,000 per year in federal assistance, the defendant

received less than $5,000 in bribes, and no federal funds

were involved in the particular transactions tainted by the

bribes.

Petitioner’s proposed construction of Section 666(b) is

flatly at odds with the plain language of the statute. As the

court of appeals stated,' the version of Section 666 that

was in effect at the time of petitioner’s offenses applied to

the improper acceptance of payments in any amount if the

government agency for which the defendant worked re-

' The Fifth Circuit is the only court to address the issue. In addition

to the instant case, it has issued a second decision on the same point.

See United States v. Duvall, No. 87-4663 (May 24, 1988).

5

ceived more than $10,000 per year pursuant to a federal

program and the transaction or series of transactions

tainted by the acceptance of improper payments involved

$5,000 or more.? Section 666(b) applied to “an agent of an

organization, or of a State or local government agency,

described in subsection (a),” namely, an organization or

agency “that receives benefits in excess of $10,000 in any

one year period pursuant to a Federal program involving a

grant, a contract, a subsidy, a loan, a guarantee, in-

surance, or another form of Federal assistance.” 18

U.S.C. (Supp. 11) 666(a). Section 666(b) made it a felony

for such a person to accept or agree to accept “anything of

value from a person or organization other than his

employer or principal for or because of the recipient’s con-

duct in any transaction or matter or a series of transac-

tions or matters involving $5,000 or more concerning the

affairs of such organization or State or local government

agency.”

On its face, the statute barred the receipt of “anything

of value” by the agent; the $5,000 requirement applied to

the value of the transaction or series of transactions

tainted by the agent’s misconduct, not to the amount

received by the agent. Petitioner’s effort to characterize

the $5,000 requirement as a requirement that the par-

ticular transaction affected by the bribe be funded by

federal money, or that the defendant receive a bribe of at

least $5,000, finds no support whatever in the statutory

language.

? Section 666 was substantially amended in 1986 (Criminal Law and

Procedure Technical Amendments Act of 1986, Pub. L. No. 99-646,

§ 59a), 100 Stat. 3612), although the amendment did not significantly

alter the definition of the crime of which petitioner was convicted in

this case.

6

Nor is the legislative history helpful to petitioner. Sec-

tion 666 created a theft and bribery statute generally ap-

plicable to employees of organizations or government

agencies that receive federal assistance. It was originally

enacted as part of the Comprehensive Crime Control Act

of 1984, Pub. L. No. 98-473, Tit. Il, § 1104, 98 Stat. 2143.

Before the enactment of Section 666, courts had held that

theft from an organization or government agency receiv-

ing federal assistance was subject to federal prosecution

under 18 U.S.C. 641 only if it could be shown that the

funds stolen were federal government property. It was dif-

ficult to satisfy that proof requirement, since federal funds

were often commingled with other funds of the recipient

agency. See S. Rep. 98-225, 98th Cong., Ist Sess. 370

(1983). Similarly, it was often difficult to prosecute an

employee of an entity receiving federal funds under the

federal bribery statute, 18 U.S.C. 201, because the courts

of appeals were in disagreement about whether employees

of such entities were public officials within the meaning of

the statute. S. Rep. 98-225, supra, at 370.5 As the Senate

Committee explained, the weaknesses in federal law made

it difficult to bring federal prosecutions for theft and

bribery by employees of organizations or government

agencies that received federal assistance, and the State and

local governments were reluctant to prosecute such cases,

’ After the Senate report was filed, this Court held that the ad-

ministrators of entities charged with the administration of federal

grants are “public officials” within the meaning of the federal bribery

Statute, 18 U.S.C. 201(a). Dixson v. United States, 465 U.S. 482

(1984). The Court stated, however, that the mere presence of some

public assistance does not bring an agency and its employees within

the reach of the statute; in order for a person to be within the reach of

Section 201(a), that person must have some degree of responsibility

for carrying oul a federal program. 465 U.S. at 499-500.

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because they viewed the federal government as the prin-

cipal victim. The Committee stated that it intended that

the reference to federal programs be construed broadly,

“consistent with the purpose of this section to protect the

integrity of the vast sums of money distributed through

Federal programs from theft, fraud, and undue influence

by bribery.” /bid.

Petitioner is plainly wrong in arguing (Pet. 11-12) that

the legislative history supports the proposition that Section

666(b) provided federal jurisdiction over bribery only if the

amount of the bribe was more than $5,000. The legislative

history on which petitioner relies relates to subsection (a) of

the statute, not subsection (b). Subsection (a) provided

federal jurisdiction over theft only if the amount of the

theft was more than $5,000, and the legislative history that

petitioner cites simply confirms that statutory requirement.

Nothing in the legislative history suggests that the same

$5,000 requirement applied to the amount of a bribe that

otherwise fell within subsection (b). Subsection (b) con-

tained entirely different language than subsection (a); it

referred to the receipt of “anything of value” in connection

with a transaction or series of transactions involving

$5,000, while subsection (a) related to thefts of $5,000 or

more from the organization or government agency. Thus,

under either subsection, the offense had to affect trans-

actions valued at $5,000 or more, but the nature of the ef-

fect was different. For the offense of theft under subsection

(a), the effect had to be direct, in that $5,000 in funds had

to be stolen from the organization or agency. Under subsec-

tion (b), by contrast, the effect could be indirect, in that the

bribery offense merely had to be shown to affect transac-

tions valued at $5,000 or more.‘

4 Pet‘tioner’s contentions (Pet. 13-14) that Section 666(b) was un-

constitutionally vague or that the rule of lenity requires that the Court

8

2. Petitioner also claims (Pet. 14-17) that the district

court improperly admitted evidence of acts of misconduct

by petitioner when she was serving as a local judge, prior

to her service as a county supervisor.

Under Fed. R. Evid. 404(b), evidence of other acts of

the defendant may not be admitted to prove character, but

may be admitted for other purposes, “such as proof of

motive, Opportunity, intent, preparation, plan, knowl-

edge, identity, or absence of mistake or accident.” Even if

relevant under that Rule, “similar act” evidence may be ex-

cluded “if its probative value is substantially outweighed

by the danger of unfair prejudice” (Fed. R. Evid. 403).

The district court properly found that the evidence of

petitioner’s embezzlement of county funds was relevant to

an issue other than petitioner’s character, and that the pro-

bative value of that evidence outweighed the risk of unfair

prejudice (Pet. App. A45-A47). The evidence consisted of

testimony by a state auditor that petitioner had failed to

account for $9,500 in fees that she had collected as a local

judge. It was offered to rebut petitioner’s defense of en-

trapment (see Tr. 479-556), by showing that she was

predisposed to use her public office to take money

unlawfully. The district court admitted the evidence on

that basis and cautioned the jury that the evidence was to

be used only in determining petitioner’s state of mind in

committing the charged offenses (Pet. App. AS50-A51).

Furthermore, as the court of appeals noted (id. at

Al2-A13), petitioner had an ample opportunity to rebut

the evidence, and the fact that the audit that formed the

interpret the statute in the fashion she suggests are totally without

merit. As we have noted, the statute by its terms was quite precise.

There is no vagueness about the jurisdictional amounts set forth in the

Statute, and in the absence of any ambiguity in the statutory re-

quirements, the rule of lenity has no role to play.

9

basis for the state auditor’s testimony was not yet complete

did not render the evidence unreliable. While the auditor

admitted that petitioner might be able to explain some of

the discrepancies in the financial records, the auditor

testified that a completed audit would nevertheless show

that a discrepancy did exist.

Petitioner’s reliance on United States v. Biswell, 700

F.2d 1310 (10th Cir. 1983), is misplaced. In that case, a

food stamp fraud prosecution, the government elicited

testimony from police officers that they were aware of

past illegal activities by the defendant and that they had

ongoing investigations regarding his conduct. The court of

appeals found that the evidence was improperly admitted

because the government did not identify the purpose for

which it was offered, it did not identify a reasonably re-

cent offense or conviction, and it offered only generalized

information that the defendant was suspected of engaging

in various types of criminal activity. The court therefore

concluded that the evidence was of questionable reliability

and that it reflected on the defendant’s character rather

than proving some fact relevant to the case. In this case,

by contrast, the “similar act” evidence was very specific,

the government offered it for a particular purpose per-

missible under Fed. R. Evid. 404(b), the evidence related

to relatively recent conduct, and petitioner had an oppor-

tunity to rebut the evidence by challenging the accuracy of

the audit. The district court therefore did not abuse its

discretion by admitting the evidence.

3. Petitioner also contends (Pet. 18-21) that the

district court erred by admitting testimony by Agent King

that another supervisor, Junie Mixon, had told him that

petitioner might be willing to accept kickbacks, and by ad-

mitting testimony by King and Ray Davis that they had

paid kickbacks to Mixon.

10

The court of appeals correctly found that the admission

of that evidence was not reversible error. Agent King’s |

testimony was relevant to petitioner’s claim that she was

not predisposed to accept kickbacks. Petitioner made that

contention throughout the trial, beginning with defense

counsel’s statement in opening argument that the jurors

were “going to get a chance to see what the agent said, and

I think you are going to find out that the agent had no

knowledge whatsoever that [petitioner] was predisposed to

do a wrong” (Tr. 23). The evidence that the FBI in-

vestigated petitioner only after learning from another cor-

rupt county supervisor that petitioner might be willing to

accept kickbacks directly countered petitioner’s suggestion

that the agents approached petitioner without any reason

to believe she might be corrupt.

Davis’s testimony about making payments to Mixon was

also relevant. Davis testified that he had referred to the

payments he made to Mixon as a way of indirectly inquir-

ing whether petitioner would be receptive to a bribe.

Davis’s reference to the Mixon payments was therefore

relevant because it provided an explanation of the cir-

cumstances under which petitioner agreed to accept

unlawful payments from Davis.

Even if the admission of the evidence regarding the

Mixon payments was erroneous, the error would not re-

quire reversal of petitioner’s convictions. As the court of

appeals noted, evidence regarding the payments to Junie

Mixon was not extensive, and the evidence against peti-

tioner was substantial (Pet. App. Al4). The main issue at

trial was whether petitioner had the requisite intent to

commit the offense. She acknowledged receiving the

payments from King and Davis, and the conversations

with King during which petitioner accepted bribes and

discussed the kickback schemes were recorded and played

for the jury. /bid. As the court of appeals observed, “Even

without considering evidence that she discussed taking

kickbacks before the government became involved, surely

the properly admitted evidence that she had previously

used her public office for personal gain and that she dealt

illegally with a vendor who was not a government agent

shows that the government detected, rather than caused,

her corruption” (id. at A15).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS, JR.

Acting Assistant Attorney General

KAREN SKRIVSETH

Attorney

JULY 1988

; US GOVERNMENT PRINTING OFFICE 1988 — 202 037'60550