U.S. v. Tucker
| Decision Date | 13 January 1998 |
| Docket Number | No. 96-50321,96-50321 |
| Citation | 133 F.3d 1208 |
| Parties | -555, 98-1 USTC P 50,147, 98 Cal. Daily Op. Serv. 306, 98 Daily Journal D.A.R. 413 UNITED STATES of America, Plaintiff-Appellee, v. Walter R. TUCKER, III, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Karyn H. Bucur, Laguna Hills, California, for defendant-appellant.
Daniel Saunders, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.
Before: PREGERSON, D.W. NELSON, and HAWKINS, Circuit Judges.
Defendant-Appellant Walter R. Tucker, III appeals his jury convictions on seven counts of extortion and two counts of filing a false tax return. Tucker also appeals the twenty-seven month term of imprisonment imposed by the district court. On appeal, Tucker contends that: (1) insufficient evidence exists to support his extortion convictions; (2) the evidence presented by the government proved entrapment as a matter of law; (3) insufficient evidence exists to support his conviction for false statements in his tax return; and (4) the district court erred in believing that it lacked authority to impose a sentence with no prison term.
The evidence, viewed in the light most favorable to the government, established the following:
In 1983, John Macardican formed and became the president of Compton Energy Systems ("CES"). CES was to build and operate a facility where refuse would be burned to make steam which, in turn, would be converted to electricity and sold to Southern California Edison. In June 1984, the Compton Planning Commission granted CES a conditional use permit. The City Council, however, reversed the Planning Commission's issuance of a permit. This vote effectively killed the CES project. Believing that the project had been defeated because he refused to pay bribes, Macardican filed a complaint with the FBI. The FBI investigation did not lead to any prosecutions.
In December 1989, Compton Planning Director Bob Gavin's secretary contacted Macardican to ask whether he was interested in reviving the CES project. After several meetings between Macardican and Tucker's father, then-Mayor Walter R. Tucker, Sr., Macardican agreed to renew the project.
In May 1990, the FBI recruited Macardican in connection with an investigation into political corruption in Compton. Macardican agreed to cooperate with the investigation and to wear a body recorder.
Tucker, a practicing attorney, was sworn in as Mayor of Compton on April 23, 1991. 1 On May 10, 1991, Macardican and Tucker were introduced and Tucker told Macardican, "We have to get together." On May 20, 1991, Bob Gavin, who was then working as a consultant to CES, had lunch with Tucker. After the meeting, Gavin told Macardican that Tucker "was very upset that [Macardican] hadn't participated or contributed to his running for mayor and that if he was going to support [the CES] project other arrangements would have to be made." Gavin told Macardican that those other arrangements were "probably going to be money."
On May 30, 1991, Macardican asked Tucker how to gain the support of the candidates in the upcoming run-off City Council elections. And when, and when you need some help you know we remember our friends so, no problem. Uh, I think that would be the way to do it because ... if I were a businessman in that position looking to do business with the city, knowing that I'm standing to, to risk ... gaining or losing a multimillion dollar project ... I'd say here, here's some for you, and some for you. (Chuckling).
Tucker told Macardican to "bet on both horses" and "help both [candidates] out." To prevent the other candidate from finding out that Macardican was paying the opposition, Tucker suggested that Macardican issue checks in another name. Tucker stated
Macardican asked if he could pay politicians with "cash or green or some other way." Tucker replied, "I guess you'd have to approach that on a case by case basis and ... see what he's comfortable with." Near the end of the meeting, the following exchange occurred:
Macardican then told Tucker that "it's gonna be green because I don't know any other way to do it." Macardican stated, "I'll get it set up and then I'll do it on an on-going basis." Tucker then told Macardican, "you're doing the right thing" and that "you got an open ear here." 2
In seven separate meetings over the next ten months, Tucker received $30,000 in payments from Macardican. 3 Those seven payments constitute the basis for the seven Hobbs Act counts on which the jury convicted Tucker. First, Tucker received $10,000 in exchange for his support and expected vote in favor of CES's conditional use project. Second, Tucker received $10,000 in exchange for an official letter to the school board, whose property CES sought to acquire for the project. Finally, Tucker received $10,000 in exchange for his vote in favor of an "exclusive negotiating agreement" granted by the City Council to CES. The First $10,000 Payment: Counts 1, 2, 3, 5, and 6
On June 26, 1991, Tucker met with Macardican at the CES office. Macardican handed Tucker $2,000 in cash and stated, "that plus ... the eight that we agreed on ... should secure your vote." Tucker replied, "We'll be friendly, definitely" and stated, Later that day, Macardican and Tucker had lunch. 4
At lunch Macardican stated that he had previously paid a "significant amount of money" to a City Council member that "turned on [him]." Macardican asked Tucker, "You're not gonna disappoint me this time are you?" Tucker replied, "No." The next day, Tucker deposited $1,850 into his personal bank account.
On July 16, 1991 Macardican and Tucker met again. Macardican asked Tucker whether it would cost as much to obtain the support of council member Omar Bradley. Tucker stated, Macardican then gave Tucker $1,000 in cash and a postdated check for $1,000 with the payee line left blank. 5 Tucker then promised to lobby Councilmembers Omar Bradley and Bernice Woods in support of the CES project. Macardican told Tucker that he would pay Bradley "two thousand a month just exactly like you." Tucker replied, "Great." Tucker deposited the check into his personal bank account on July 30, 1991.
On August 28, 1991, Macardican met with Tucker at the CES office. Macardican stated that he had met with Bradley but had been uncomfortable because Bradley did not respond to his hints about support. Macardican stated, "I didn't wanna insult him because you know we're doing something that's not ... entirely right." Tucker stated that he would "pull [Bradley] aside" and talk with him. Macardican then paid Tucker another $1,000 cash. That same day, Tucker deposited $980 in cash into his personal bank account.
Count 5
On November 8, 1991, Tucker met Macardican outside the CES office. Macardican gave Tucker $1,000. Shortly thereafter, Tucker deposited $850 in cash into his personal bank account.
Count 6
On February 12, 1992, Tucker and Macardican met for lunch. They discussed Tucker's plan to run for Congress. Two days later, Macardican paid Tucker the remaining $4,000 from the original $10,000 promised. Shortly thereafter, Tucker deposited $3,200 in cash into his personal bank account.
At the February 12, 1992 meeting, Macardican told Tucker that the school board required a letter of support from the Council before they would consider a lease or purchase of school board property. Tucker stated, "So what type of help do you think you'd be able to give me on uh my campaign." Macardican asked Tucker how much he needed. Tucker responded, "if I could get ten, it'd be great." Macardican then told Tucker that he would comply but would not give the $10,000 as a campaign contribution. Macardican later reiterated, "I'm not giving [the money] for [a] campaign."
At the February 14 meeting, Tucker handed Macardican a draft of a letter to the school board. The draft was unsigned, not on letterhead, and Tucker did not give Macardican a copy. Macardican promised to On March 12, 1992, Tucker again met with Macardican. Macardican asked for, but did not receive, a copy of the letter to the school board. Macardican then gave Tucker $10,000 cash. Later that day, Tucker faxed Macardican the signed letter on...
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