United States v. Turner

• Decision Date: 11 July 2012
• Docket Number: No. 11–1129.,11–1129.
• Citation: 684 F.3d 244
• Parties: UNITED STATES, Appellee, v. Charles TURNER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

684 F.3d 244

UNITED STATES, Appellee,

v.Charles TURNER, Defendant, Appellant.

No. 11–1129.

United States Court of Appeals,First Circuit.

Heard May 9, 2012.

Decided July 11, 2012.

Charles W. Rankin, with whom Michelle Menken and Rankin & Sultan were on brief, for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, SELYA and THOMPSON, Circuit Judges.

LYNCH, Chief Judge.

A federal jury convicted Charles Turner of one count of attempted extortion under color of official right in violation of the Hobbs Act, 18 U.S.C. § 1951, and three counts of making a false statement in violation of 18 U.S.C. § 1001. Turner, at the time of his trial and since 2000, was a member of the Boston City Council. The indictment charged Turner with making false statements to FBI agents and accepting $1,000 in exchange for performing official acts to assist a local businessman in obtaining a liquor license for a planned supper club in the Roxbury neighborhood of Boston. That businessman, Ronald Wilburn, was in fact cooperating with the FBI.

Turner's appeal challenges his convictions and his sentence. As to the Hobbs Act count, he argues both (1) that the district court's jury instructions on two elements (reciprocity and interstate commerce) constituted plain error, so he is entitled to a new trial, and (2) there was insufficient evidence to satisfy those same two elements and so he is entitled to a judgment of acquittal on that count. He does not seek a judgment of acquittal on the three false statement counts. Turner also argues he is entitled to a new trial based both on purported errors in the admission of certain evidence and on the prosecution's closing argument. Finally, Turner challenges his thirty-six month sentence based on a contention that the government impermissibly sought vindictively to punish him.

We affirm Turner's convictions, deny his requests for a new trial, and affirm his sentence.

I.

The evidence presented at trial is described in the light most favorable to the jury's guilty verdict. See United States v. Manor, 633 F.3d 11, 12 (1st Cir.2011).

In early 2007, before he began working with the FBI, Ronald Wilburn was attempting to secure needed local government permission to open a supper club called Déjà Vu at the Crosstown Development Center in the Roxbury neighborhood of Boston. Sales of alcohol were to be a large portion of the club's revenue. Wilburn turned to two local elected officials for support: state Senator Diane Wilkerson and Councillor Turner; the Crosstown project was in the districts each represented. Wilburn applied for an all-alcohol license ¹ from the Boston Licensing Board (“Board”) in January 2007 and supported his application with a letter from Turner. The letter was prepared by Wilburn's lawyer and signed by Turner; Turner was not paid for the letter. Wilburn had a hearing before the Board in March 2007. In April the Board rejected his application because, it said, the location was not conducive to having a supper club and because the venue was too large. Wilburn submitted a new floor plan to the Board in May or June of 2007, but the Board did not change its decision.

The FBI had received information that Wilburn and a business associate had made payments to Senator Wilkerson in exchange for her help with an earlier business venture and in obtaining a lease for the supper club space at the Crosstown project. The FBI approached Wilburn with this information, and Wilburn began working with the FBI in late February 2007. At the request of the FBI, Wilburn met with Wilkerson on five occasions, starting on June 5, 2007, and offered her money in exchange for her assistance in securing an all-alcohol license for his Crosstown project supper club. Wilburn made two cash payments—$500 and $1000—to Wilkerson in June 2007.

After these payments, Wilkerson began working at both the state and local levels to secure the license for Wilburn. One such effort was an e-mail she sent on June 28, 2007, to some members of the Boston City Council, including Turner, asking for a hearing on the subject of liquor licenses. Her e-mail explained that of sixty liquor licenses recently granted to the City of Boston by the Massachusetts legislature, none had gone to businesses in the Dorchester and Roxbury portions of an “Empowerment Zone” in Boston. Her e-mail singled out two applications from those neighborhoods: one was Wilburn's for the Déjà Vu supper club in Roxbury, and another was for a restaurant in Dorchester called “Poppa B's.” Turner responded positively to Wilkerson's e-mail the next day. His purported reason for seeking to hold hearings on the denial of liquor licenses was to investigate issues raised by liquor licenses not going to establishments in the Empowerment Zone. During a conversation between Wilkerson and Wilburn in early July 2007, Wilkerson stated that Turner “was going to help out and talk to the right people” and that he was going to set up a city council hearing.

On July 10, 2007, Turner filed an order with the city council requesting a hearing “to discuss the decision making process that led to the denial of licenses in an area of the Empowerment Zone in need of economic development.” The order was co-sponsored by several other city councillors and specifically mentioned the Crosstown Development, where Wilburn planned to locate his supper club. The order was introduced in the city council on July 11, 2007, and referred to the Economic Development and Planning Committee, chaired by Councillor Linehan.

After Turner's positive response to Wilkerson's e-mail, the FBI asked Wilburn to meet with Turner “to feel him out to see if he was so inclined, as Senator Wilkerson was, to accept money on behalf of official acts.” Wilburn agreed.

Wilburn first met with Turner in his Boston City Hall office on July 25, 2007. At this time the city council hearing on the denial of liquor licenses in the Empowerment Zone which Turner had requested had not yet been scheduled. During this meeting, which was captured by a recorder Wilburn wore, Wilburn thanked Turner for his support of Wilburn's liquor license application. Turner said that he already “knew [Wilkerson] was working with” Wilburn on the matter of the liquor licenses. Turner told Wilburn that he had “everything set up to have a hearing.” Turner also connected himself to Wilkerson, saying he did not yet want to set a date for the hearing “without her saying, yeah, that fits her strategy.” Turner asked whether Wilburn and Wilkerson were still “interested in going forward,” and Wilburn indicated that they were. The men discussed the issue of the licenses further, then while Wilburn waited Turner called Senator Wilkerson's and Councillor Linehan's offices to set a date for the hearing. Even though the hearing would involve several attendees, Turner only coordinated schedules with Linehan, whose committee the hearing would be before, and with Wilkerson, but not with anyone else.

During this July 25 meeting, Wilburn told Turner four separate times that he wanted to hold a fund-raiser for Turner to thank him for his support. Turner thanked him and they discussed a location for the fund-raiser—a club in Roxbury called “Slades”—and they talked about a time: a Saturday afternoon around 3:00 P.M. Turner said that “would be wonderful” and gave Wilburn his wife's phone number to coordinate the fund-raiser.

On August 2, 2007, at the direction of the FBI, Wilburn met with Wilkerson in a restaurant near the State House and gave her another payment of $1,000. This payment, captured on videotape, was in exchange for her performing official duties to help get Wilburn a liquor license.

The next morning, August 3, 2007, Turner called Wilburn at his home and asked Wilburn to come to Turner's Roxbury district office later that day to talk about the liquor license. Wilburn reported this phone call to the FBI agent handling the case, and the agent outfitted Wilburn with an audio/visual recording device and gave him $1,000 in fifteen bills to give to Turner at the meeting. This phone call was not recorded. Wilburn testified that his daughter was at home at the time he received the call and that he did not use the recording equipment because he did not want her to know he was working with the FBI. At trial, Turner denied that he made the call.

That afternoon, Wilburn arrived at Turner's Roxbury office and waited to speak with Turner. Turner's office was fairly small, and Wilburn testified that when he did get to speak to Turner there were other people within earshot, so he “really couldn't say what [he] wanted to say.”

Wilburn told Turner that he had “[h]eard some good things about” Turner. Wilburn then said, “I wanted to do something for you and your wife and I talked to Diane [Wilkerson], again this morning. I think we talked about that.... I met with her and, uh, about the hearing that you're gonna be doing.” Turner responded with affirmative “Mm-hmm's.” Wilburn also said, “I'm really grateful because it's really hard to get somebody to stand up for you in a fight and I just wanted to stop by and just ... give you, take your wife out to do dinner and do something nice.” To which Turner replied, “Oh, that'd be, yup.”

The two men went on to discuss scheduling issues regarding the hearing on the denial of liquor licenses. Turner and Wilburn then had the following exchange:

Wilburn: I told [Wilkerson] that I'd talk to you and, I was gonna stop by and show my gratitude.

Turner: Mmm-hmm.

Wilburn: And then, you know, after the hearing, I want to show my gratitude again.

At this point in the conversation, Wilburn handed Turner the $1,000 in fifteen bills given to him by the FBI agent earlier in the day. The jury watched a video of the handover of the cash, recorded by a concealed camera that Wilburn wore. In the foreground is Wilburn's hand holding...