U.S. v. Wilkinson

• Citation: 26 F.3d 623
• Decision Date: 02 June 1994
• Docket Number: No. 93-5757,93-5757
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bruce N. WILKINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 623

26 F.3d 623

UNITED STATES of America, Plaintiff-Appellee, v. Bruce N. WILKINSON, Defendant-Appellant.

No. 93-5757.

United States Court of Appeals, Sixth Circuit.

Argued Mar. 8, 1994.

Decided June 2, 1994.

Stephen B. Pence, Asst. U.S. Atty., Office of the U.S. Atty., Louisville, KY, Edwin J. Walbourn, III (briefed), Office of the U.S. Atty., Covington, KY, Bruce E. Reinhart (argued), U.S. Dept. of Justice, Public Integrity Section, Washington, DC, for plaintiff-appellee.

Carter G. Phillips (argued and briefed), Mark D. Hopson, Sidley and Austin, Washington, DC, George Salem, Jr., Louisville, KY, Frank E. Haddad, Jr., Louisville, KY, for defendant-appellant.

Before: NELSON and SILER, Circuit Judges; and WELLFORD, Senior Circuit Judge.

WELLFORD, Senior Circuit Judge.

During the late 1980's, the Kentucky legislature passed legislation allowing for inter-track wagering ("ITW"). Under this legislation, if no horse racing were running at a particular track, it could still operate and compete with other tracks by taking bets through ITW. This law, however, provided that in small communities only tracks featuring thoroughbred horse racing could simulcast such races. At this time, Ellis Park and Riverside Downs, both horse racing tracks, were situated in the small community of Henderson, Kentucky. Riverside Downs, a harness racing enterprise, could not compete with the thoroughbred race track, Ellis Park, under the ITW system. Riverside Downs, therefore, began both a legal effort and a lobbying effort to change the existing Kentucky law.

M. L. Vaughn, owner of Riverside Downs, hired John Hall, a former Kentucky state senator, as a lobbyist on its behalf. After lobbying activity, the Kentucky General Assembly amended the ITW law to provide that thoroughbred and harness racing tracks in larger communities should split ITW simulcast dates on a 60/40 basis. This amendment, however, was of no practical help to Riverside Downs located in Henderson. In the fall of 1990, Vaughn became privy to information that certain Kentucky legislators were soliciting bribes in exchange for their assistance in removing the provision of the law favoring Ellis Park. After discussing this problem, Vaughn and one of his employees, Chris Koumas, decided to contact the FBI. Thereafter, Koumas began to work for the FBI on their ensuing investigation into this matter. After confronting Hall with evidence of his participation in such activities in related matters, ¹ Hall agreed to cooperate with this ongoing investigation.

Vaughn instituted a state court action seeking to strike down a provision of the ITW law granting exclusive ITW rights to his competitor, Ellis Park. He was successful in state court, but prior to this time the ITW law provided that the two Kentucky racing commissions would meet in the fall of each year and agree on the allocation of ITW dates between competing tracks for the following year. The ITW law also required the Kentucky Governor to appoint an arbitrator to resolve any impasse between the two commissions. In October, 1991, the commissions were at an impasse regarding the allocation of ITW dates between Riverside Downs and Ellis Park. The commissions, therefore, applied to the Governor for the appointment of an arbitrator.

On or before November 6, 1991, the defendant, Bruce Wilkinson, learned of this decision to appoint an arbitrator. Wilkinson, an employee in the office of his uncle, Governor Wallace Wilkinson, then compiled a list of people from which the Governor might select an arbitrator. Within ten days, Governor Wilkinson appointed Linda Thomas, law partner of one of the attorneys on the original list of proposed arbitrators. The government asserts that the defendant's criminal activities began at this juncture. The government alleges that in October and November of 1991, the defendant and Jay Spurrier, ² a lobbyist, had agreed that the defendant would ensure that an arbitrator would be appointed and that Riverside Downs would receive a favorable ruling. In return, the defendant would receive $20,000. After learning that the Governor planned to appoint an arbitrator, the defendant allegedly told Spurrier that he secured the appointment of an arbitrator, ensuring a favorable outcome for Riverside Downs. Spurrier allegedly then agreed to the $20,000 proposed arrangement, but the defendant would not receive any money until after the arbitrator ruled.

Spurrier told Bill McBee ³ about this proposed arrangement and pay-off. Spurrier and McBee then relayed this information to Koumas in Lexington, Kentucky. Shortly thereafter Riverside Downs agreed to pay for the appointment of an arbitrator with expectation of a favorable decision. Also at this meeting, Spurrier told Koumas and McBee that he would be attending the Breeders' Cup race the next day and would be sitting with the person who would appoint the arbitrator. Spurrier sat with the defendant at the Breeders' Cup.

Wilkinson was indicted for conspiring to commit extortion under color of right in violation of the Hobbs Act, 18 U.S.C. Sec. 1951, and for engaging in a mail fraud scheme in violation of 18 U.S.C. Secs. 1341 and 1346. Wilkinson was acquitted on the mail fraud count, but convicted on the Hobbs Act count. Wilkinson appeals his conviction challenging, among other things, the jury instructions and the admission of a surveillance tape.

I. JURY INSTRUCTION ON EFFECT ON INTERSTATE COMMERCE

We review a challenged jury instruction under "a plain error" standard when the defendant fails to object to the instruction at trial. United States v. Young, 470 U.S. 1, 15-16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985); Fed.R.Crim.P. 52(b). ⁴ An instruction is not plainly erroneous unless there was "an egregious error, one that directly leads to a miscarriage of justice." United States v. Busacca, 863 F.2d 433, 435 (6th Cir.1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1640, 104 L.Ed.2d 156 (1989). In any event, this court must evaluate claimed error in light of the entire trial record. Young, 470 U.S. at 16, 105 S.Ct. at 1046.

Where a jury instruction is given in the alternative, and any one of the alternative instructions is in error, the verdict must be assumed to have "rested exclusively on the insufficient ground." Zant v. Stephens, 462 U.S. 862, 881, 103 S.Ct. 2733, 2745, 77 L.Ed.2d 235 (1983). Failure to define accurately the elements of an offense, moreover, may constitute plain error. Fed.R.Crim.P. 52(b); United States v. Bryant, 461 F.2d 912, 921 (6th Cir.1972) (holding that failure to give accurate instructions on elements of an offense is "grave error," "not excused or waived by failure to request a proper instruction"). Under the Hobbs Act, the basis of the indictment, the government must establish that there was extortion and that the extortion obstructed, delayed or affected interstate commerce. Stirone v. United States, 361 U.S. 212, 218-19, 80 S.Ct. 270, 273-74, 4 L.Ed.2d 252 (1960).

The district court gave three alternative instructions, pursuant to which the jury might find the alleged extortion had the requisite effect on interstate commerce as suggested by the government:

(1) The government asserts that the alleged conspiracy had the potential to diminish the assets of Riverside Downs....

(2) The government also asserts that the alleged conspiracy actually affected commerce through the making of interstate telephone calls....

(3) Finally, the government asserts that had the conspiracy succeeded, it would have resulted in the flow of goods and services in interstate commerce....

If you find unanimously that the government has proven any one of these beyond a reasonable doubt, then the necessary effect on interstate commerce has been shown.

(emphasis added).

That third part of the instruction is at issue on this appeal. The defendant argues that this last part of the instruction is erroneous because it permits the jury to find an effect on interstate commerce based upon the result or consequences of the extortion rather than the alleged extortion. The defendant argues that such construction of the Hobbs Act is wrong, being contrary to congressional intent, the rules of statutory construction, and established precedent. The defense relies specifically on United States v. Mattson, 671 F.2d 1020 (7th Cir.1982).

In Mattson, the victim of the extortion and scheme was an employee of Playboy Enterprises. The defendants forced the victim to pay out of his own personal funds in order to obtain an electrician's license. Playboy had encouraged the employee/victim to obtain the license so that the employee could undertake certain repairs and improvements and save Playboy the cost of obtaining outside contractors. Rejecting a jury instruction offered by the government that would allow the jury to find that success in the extortion and scheme would result in a requisite effect on interstate commerce, Mattson held that the benefit to Playboy resulted not from the extortion itself, but from the beneficial result of the extortion. Id. at 1025. The court then concluded that such an instruction was beyond the reach of the Hobbs Act, which requires that interstate commerce be effected by extortion, not by the result of extortion. Id. The Seventh Circuit accordingly refused to expand the Hobbs Act to all instances in which the success of the scheme to extort had some indirect effect on interstate commerce. Id.

The government, in response, contends that Mattson is distinguishable, involving a victim that was an individual who was not personally engaged in interstate commerce. The government notes that the Seventh Circuit concluded that the holding would have been different if a business entity were the victim. See Mattson, 671 F.2d at 1024-25. On the other hand, the government argues that the challenged jury instruction in this case is consistent with our holding in United States v. Peete, 919 F.2d 1168, 1174 (6th Cir.1990). In Peete, we held...