U.S. v. Allen

• Decision Date: 23 December 1993
• Docket Number: No. 93-1525,93-1525
• Citation: 10 F.3d 405
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clemmons J. ALLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 405

10 F.3d 405

UNITED STATES of America, Plaintiff-Appellee, v. Clemmons J. ALLEN, Defendant-Appellant.

No. 93-1525.

United States Court of Appeals, Seventh Circuit.

Argued June 8, 1993.

Decided Oct. 27, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 23, 1993.

Michael A. Thill, Asst. U.S. Atty., Office of the U.S. Atty., Dyer, IN (argued), for plaintiff-appellee.

Michael B. Nash, Chicago, IL (argued), Frederick T. Work, Gary, IN, for defendant-appellant.

Before COFFEY and MANION, Circuit Judges, and ALDISERT, Senior Circuit Judge. ^*

MANION, Circuit Judge.

Clemmons J. Allen appeals his conviction for conducting or aiding and abetting the conduct of an illegal gambling business in violation of 18 U.S.C. Secs. 1955 and 2. We affirm.

I.

From August 1989 until August 1990, the FBI operated a gambling business in Gary, Indiana. (We will refer to this business as "the club.") The FBI's purpose in operating the club apparently was to ferret out corruption among local officials. Special Agent Denise Minor, acting undercover, ran the club along with Bobby Joiner, an FBI informant. Minor and Joiner employed several other people to perform the tasks common to a gambling business, such as running the games and bartending. But since gambling businesses are illegal in Indiana, Minor and Joiner also had several people on the payroll to perform another type of essential work--protecting the business from raids by the local police.

The government alleged that Allen was one of the people providing protection to the gambling business. Allen was a civilian internal affairs investigator for the Lake County Sheriff's Department. He was also a deputy sheriff. Before starting his job with the Sheriff's Department, Allen had been a Gary police officer for twenty years. Allen was also a player in Lake County politics. He was not only associated with several Lake County officials (including the Lake County Sheriff), but was also a Gary city councilman for a number of years. Allen, with his connections in the police and sheriff's departments and to local politicians, would seem like an ideal person to talk to if one was seeking protection from law enforcement officials.

The main evidence against Allen consisted of evidence of conversations Allen had with Joiner and Minor, presented both in video and audio tapes and by live witnesses. On April 14, 1990, Allen met Joiner, Minor, and Willie Anderson (a Lake County Sheriff's police officer who admitted to providing protection) at the club. During the meeting, Allen and Minor discussed holding a fundraising party for Sheriff Stiglich's reelection campaign. Allen and Joiner then discussed old times. Joiner told Allen, "We go way back, you know, you look out for me and I look out for you." Joiner then paid Allen $500 for tickets for Stiglich's fundraiser. Allen responded to Joiner by saying that "Bob, you know, we go way back, you know." To this, Joiner replied, "Yes, man, you know, you know how things are today, you know, so we got to look out for each other." ¹

Allen met again with Joiner at the club ten days later. Allen and Joiner discussed Sheriff Stiglich's fundraiser, which had been a success, and a similar fundraiser to be held for Allen himself. Joiner had purchased some tickets to the Allen fundraiser but gave them back to Allen for a group of senior citizens to use. The conversation then turned to Joiner's relations with Sheriff Stiglich and the Sheriff's Department, and protection:

Joiner: I don't need to tell [Stiglich] to protect me from gamblin'.

Allen: Yeah.

Joiner: I tell ya I told ... I don't need to tell him nothin', he's doin' it. I ain't got no trouble with his people.

Allen: I hear ya.

Joiner: I don't need to say nothin' to him about what I need.

Allen: Yeah.

Joiner: I says Clem and Anderson do everything I need, so hey, ain't no problem.

Allen: Yeah.

Joiner: I got no problem. Whatever you need, you tell me, you got it. I mean, you know, like I said the price ... here man, I'll tell you what to do. You get ... what's that? That's five more.

Allen: Yeah, that's five more.

Joiner: Yeah, just put it, put it on the table you know. We'll take care of you.

Allen: That's three hundred.

Joiner: So it's like ...

Allen: Damn. Well, if you called me at three o'clock in the morning, I'm gonna be there.

Joiner: I know it. That's what ...

Allen: I swear to God, I'm gonna be there.

During the meeting, Joiner gave Allen $300 for fundraiser tickets. Joiner, at Allen's request, also told Allen that he could have some Martell whiskey at Joiner's cost--which was little or nothing, because Joiner's whiskey was supplied by "boosters" (that is, thieves). Three days later, Allen and another man went to the club to pick up the whiskey.

On June 29, Allen went to the club and discussed with Minor a golf outing to be held for Judge Graddick. A man named Rock Gant previously had dropped off some tickets for the outing at the club, and Allen talked to Minor about arrangements for collecting the money after the tickets were sold. The conversation went on:

Allen: So I talked to Will a couple days ago. I'll bring either Will or the Judge up here one evenin', I'll call you and make sure Bobby [Joiner's] gonna be here.

Minor: Okay.

Allen: And get an understanding.

Minor: Okay. That's what (unintelligible).

Allen: If the guy wants somethin from Bobby, Bobby is, uh ... no need to spend his money to help somebody that maybe he can't get a favor from later on.

Minor: Right.

Allen: So don't even make good business sense....

Allen: 'Cause I want Bobby to feel comfortable, you know, and ... I mean if he buys a ticket from somebody and does somebody a favor, he needs to feel comfortable that, uh, he's made ... not only has he helped the person, and, and, ni ... nine times outta ten as independent as Bobby is, Bobby put himself in a position where he really don't need no favors from nobody.

Minor: Right.

Allen: But if the time ever comes ...

Minor: Um hum.

Allen: ... You don't want a guy to have amnesia, you know, you don't wanna have to ...

Minor: Right, yeah.

Allen: ... go damn man, you know, uh, two years ago I, I, I did you a hell of a favor, you know.

Minor: Right.

Allen: What the hell's goin' on, you know.

Minor: Right, right.

Allen: Yeah.

Minor: Yeah.

Allen: A ... and, and we are quick to forget things. We're very quick to forget ...

Minor: Um hum.

Allen: ... when people are nice to us, okay.

Minor also told Allen that she and Joiner appreciated what Allen was doing for them. Allen responded by saying, "Okay."

About three weeks later, Allen stopped by the club to pick up a photograph of himself and Sheriff Stiglich that Minor had had enlarged and framed for him. A week after that, Minor called Allen to speak to him about the tickets for the Graddick fundraiser that Gant had dropped off at the club. Allen told Minor to tell Gant that he would make sure Graddick received the ticket money. Allen also asked if Gant was one of the club's "regular customers." Minor replied that "No, he, uh, you know, gambles every now and then, but, you know, he doesn't come regularly." On July 30, Minor paid Allen $150 for the Graddick tickets.

A grand jury charged Allen in a two-count indictment. Count 1 alleged that Allen committed a RICO violation by conducting the affairs of the Lake County Sheriff's Department through a pattern of racketeering activity. See 18 U.S.C. Sec. 1962(c). Count 1 charged six racketeering acts. The first five acts were alleged violations of the Indiana bribery statute, Ind.Code 35-44-1-1(a)(2). Those acts were: accepting $500 from Joiner and Minor on April 14, 1990 (the money he received for the Graddick fundraiser tickets); accepting $300 from Joiner and Minor on April 24, 1990 (the money he received for his own fundraiser tickets); accepting the case of Martell whiskey on April 27; accepting the framed photograph of himself and Sheriff Stiglich on July 20; and accepting $150 on July 30 (the money he received for the Graddick fundraiser tickets). The sixth racketeering act alleged that from August 1989 through August 1990, Allen conducted or aided and abetted the conduct of an illegal gambling business. The indictment restated the allegations of racketeering act six as a separate count in Count 2.

The government's theory at trial was that Allen had accepted bribes from Joiner and Minor in exchange for protecting the club's gambling operations from police intervention; his protection constituted the conduct necessary to convict Allen of conducting or aiding and abetting the conduct of the gambling business. Allen maintained that the money and other items he received were legitimate campaign contributions, and that he never promised to provide protection to the club. The jury found Allen guilty on count 2, the gambling count. But oddly enough, in answering a special interrogatory, the jury found that the only racketeering act Allen had committed was accepting a bribe by accepting the Martell whiskey from Joiner (despite the fact that racketeering act 6 was the aiding and abetting of an illegal gambling business charged in count 2). Because it found that Allen had committed only one racketeering act, the jury acquitted Allen on the RICO charge. After the district court denied his post-trial motions and sentenced him, Allen filed this appeal.

II.

Allen asserts that he sought and accepted campaign contributions, not bribes. The government asserts that the payments to Allen were not campaign contributions but outright bribes, and that even if the payments were campaign contributions, they were still bribes. Assuming that the payments were actually campaign contributions (a reasonable assumption given that every payment was made in the context of a political campaign, that three of the payments were at least ostensibly in exchange for tickets to fundraising functions, and that even the case of whiskey was actually used...