11 F.3d 426 (4th Cir. 1993), 92-5536, United States v. Grubb

Docket Nº:92-5536.
Citation:11 F.3d 426
Party Name:RICO Bus.Disp.Guide 8437 UNITED STATES of America, Plaintiff-Appellee, v. James Ned GRUBB, Defendant-Appellant.
Case Date:November 19, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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11 F.3d 426 (4th Cir. 1993)

RICO Bus.Disp.Guide 8437

UNITED STATES of America, Plaintiff-Appellee,

v.

James Ned GRUBB, Defendant-Appellant.

No. 92-5536.

United States Court of Appeals, Fourth Circuit

November 19, 1993

Argued May 7, 1993.

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Rebecca Ann Baitty, Lutz, Webb, Bobo & Baitty, P.A., Sarasota, FL (argued), for defendant-appellant.

Paul Arthur Billups, Asst. U.S. Atty., Huntington, WV, argued (Michael W. Carey, U.S. Atty., on brief), for plaintiff-appellee.

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Before WIDENER, Circuit Judge, MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

WIDENER, Circuit Judge:

The defendant, James Ned Grubb, appeals from a jury verdict of guilty on the following seven counts of an eight-count indictment: aiding and abetting the payment of a bribe in violation of 18 U.S.C. Sec. 2 and Sec. 666(a)(2); two counts of aiding and abetting mail fraud in violation of 18 U.S.C. Sec. 2 and Sec. 1341; conspiracy to commit fraud in violation of 18 U.S.C. Sec. 371; tampering with a witness in violation of 18 U.S.C. Sec. 1512; obstruction of justice in violation of 18 U.S.C. Sec. 1503; and operating his judicial office as a racketeering enterprise in violation of 18 U.S.C. Sec. 1962(c). The jury found Grubb not guilty of one count of extortion pursuant to 18 U.S.C. Sec. 1951. Grubb challenges the admission of certain evidence; the sufficiency of the evidence to convict him on the bribery, mail fraud, conspiracy, obstruction of justice, and RICO counts; and his 65-month sentence. We affirm.

At the time of his arrest, defendant James Ned Grubb was an elected circuit judge of the Seventh Judicial Circuit of West Virginia, located in Logan County. Previously, Grubb was Logan County assistant prosecutor, elected member of the County Board of Education, and a West Virginia State Senator. While a judge in 1988, Grubb supported Oval Adams in his primary election bid for Logan County Sheriff. In January of 1988, Grubb personally gave Adams $3,000 in cash for his campaign. On April 22, 1988, Grubb addressed a political rally in Chapmanville, West Virginia, in which he strongly supported Oval Adams for Sheriff (Chapmanville speech). 1 Also, near the same time in 1988, Earl Tomblin, a friend of Grubb's and a former Sheriff of Logan County, met with Grubb in his judicial chambers and discussed Oval Adams's race for county sheriff. Grubb asked Tomblin if he was going to help Adams, and Tomblin offered to give Adams $10,000 for his campaign if Adams would give him two years of part-time work if elected sheriff. Tomblin told Grubb that he needed the two years of work for his social security and state pension benefits. Grubb agreed to relay this offer to Adams and "see what he could do." Subsequently, Grubb met with Adams, and told him of Tomblin's conditional offer. Grubb told Adams to "think about it." Later, Grubb asked Adams if he had met with Tomblin and Adams answered that he had. On May 2, 1988, Tomblin gave Adams $10,000, with the understanding that Adams would hire Tomblin if elected or pay the money back if not elected. Adams won the primary and general elections and in July of 1989, Tomblin asked Grubb to "remind Oval [Adams] about my job." Grubb did so. Adams then hired Tomblin to be a part-time investigator for the Sheriff's office, beginning in July of 1989. Tomblin received a salary,

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along with social security, retirement, and other benefits, but he performed little work for the Sheriff's office, he did not "perform functions for the sheriff's office on a regular basis." For two years, the county clerk mailed to the West Virginia Public Employees Retirement System both the county's and Tomblin's share of pension contributions.

In August 1991, as part of a plea bargain to a charge of conspiracy to transport stolen coal across state lines, Oval Adams agreed with the FBI to meet with Grubb and tape their conversations. On September 19, 1991, Adams met with Grubb in his chambers, communicated that the FBI was investigating him and a federal grand jury had subpoenaed him, and asked Grubb for advice. During this conversation and another one on September 25, 1991, Grubb suggested several approaches Adams could take in regard to the federal investigation and his upcoming grand jury appearance, including lying about or mischaracterizing Adams's deal with Tomblin, and even telling the truth in exchange for immunity. On October 8, 1991, special agents of the FBI questioned Grubb and he denied knowledge of any illegal campaign contributions in 1988 and denied personal involvement in getting Tomblin employment with the Sheriff's Office. Further, Grubb proffered legitimate reasons why Tomblin did not pay for the job, including the fact that Adams didn't need any money for his campaign and Adams was a friend of Tomblin's son.

Grubb's involvement in the Tomblin/Adams employment in return for a campaign contribution and the subsequent mailing of pension contributions formed the basis of Count One, aiding and abetting the payment of a bribe in violation of 18 U.S.C. Sec. 2 and Sec. 666(a)(2); Count Two, aiding and abetting mail fraud in violation of 18 U.S.C. Sec. 2 and Sec. 1341; and Count Three, conspiracy to commit bribery and mail fraud in violation of 18 U.S.C. Sec. 371. Grubb's advice to Adams regarding Adams's upcoming grand jury appearance is the basis of Count Four, witness tampering, in violation of 18 U.S.C. Sec. 1512. Grubb's statements to the FBI agent form the basis of Count Five, obstruction of justice in violation of 18 U.S.C. Sec. 1503.

Grubb did not have to run for re-election until 1992. However, he was a powerful figure in local politics and local elections and supported his own slate of candidates for local elections in 1988 and 1990. In early 1990, James Burgess, a candidate for state senator in a district that included Logan County, sought Grubb's political support. Burgess testified that he sought out help from Grubb because "I needed some help in Logan County, and I figured he, being a circuit judge, he would have a lot of political clout and he would be very essential to my campaign." Burgess met with Grubb at various places, including Grubb's chambers. In April of 1990, Grubb called Burgess and other candidates to a meeting at Grubb's house to discuss financing the upcoming election campaign. At that meeting, Grubb told Burgess that his contribution to the campaign expenses of the slate of candidates would be $10,000. Burgess agreed because "I knew Logan County politics you had to get on the slate if you expect to win." Several days later, Burgess gave Grubb $10,000 in cash. When Burgess filed the campaign finance report required by West Virginia law, he omitted reporting this illegal cash payment to Grubb, as well as Grubb's expenditure of those funds in behalf of Burgess and the slate. 2 Burgess mailed this report to the West Virginia Secretary of State. Burgess testified at trial that the reason he did not report the $10,000 cash given to Grubb was because

I didn't know what was going to happen. I think it was very important at that point in time, I was dealing with a judge in Logan County, and I thought it couldn't be too bad, so I wasn't worried about any legal

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proceedings or any indictment. So I didn't list it because I didn't know what he was going to do.

So Burgess testified that he did not worry about any legal proceedings or an indictment because he was "dealing with a judge." He assumed that Grubb would use the $10,000 cash to pay for various campaign expenditures for Burgess and other candidates of Grubb's Logan County slate. The use of the mail to deliver the false campaign report in furtherance of Grubb's and Burgess's scheme to defraud, 3 resulted in Count Seven, aiding and abetting and mail fraud in violation of 18 U.S.C. Sec. 1341 and Sec. 2.

At trial, the jury acquitted Grubb of Count Six, extortion in violation of 18 U.S.C. Sec. 1951. That count charged Grubb, along with his ex-wife Linda, of using Grubb's judicial position to extort $4,000 from an attorney who had a medical malpractice case pending before Grubb's court.

Count Eight of the indictment, a RICO charge pursuant to 18 U.S.C. Sec. 1962(c), alleged that Grubb used the office of Judge of the Seventh Judicial Circuit of West Virginia as a RICO enterprise and conducted the affairs of that enterprise through a pattern of racketeering activity, i.e. the bribery of Adams (Count One), the mail fraud involving Tomblin's pension payments (Count Two), witness tampering in advising Adams to lie to the grand jury (Count Four), the Burgess mail fraud (Count Seven), and extortion (Count Six). The jury convicted Grubb of the RICO count, and all of the underlying predicate acts, except for extortion.

I.

The defendant challenges the admission of certain evidence as irrelevant under Fed.R.Evid. 402 and prejudicial under Fed.R.Evid. 403. Specifically, Grubb contests the admission of the following evidence: Grubb's advising a bankruptcy client to conceal a financial asset during a bankruptcy proceeding and his subsequent license suspension in 1972; the Chapmanville speech; the text of canons 2 and 7 of the Code of Judicial Ethics; and the cross-examination of Grubb regarding his marital status with Linda Grubb.

Grubb claims that the evidence regarding his prior advice to his client not to tell the whole truth to the bankruptcy court, as well as his subsequent disbarment, was irrelevant, prejudicial, improperly used to show conformity under Fed.R.Evid. 404(b), and was not admissible under...

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