U.S. v. Hall, s. 75-1358

• Citation: 536 F.2d 313
• Decision Date: 08 June 1976
• Docket Number: Nos. 75-1358,75-1359,s. 75-1358
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David HALL and W. W. Taylor, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 313

536 F.2d 313

UNITED STATES of America, Plaintiff-Appellee, v. David HALL and W. W. Taylor, Defendants-Appellants.

Nos. 75-1358, 75-1359.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted March 22, 1976.

Decided May 12, 1976.

Rehearing Denied June 8, 1976.

Mac Oyler, of Oyler & Smith, Oklahoma City, Okl., for defendant-appellant, David Hall.

Emmett Colvin, Jr., of Colvin & Jackson, Dallas, Tex., for defendant-appellant, W. W. Taylor.

O. B. Johnston III, Asst. U. S. Atty., Oklahoma City, Okl. (David L. Russell, U. S. Atty., Drew Neville, William S. Price, Asst. U. S. Attys., and William R. Burkett, U. S. Atty., Oklahoma City, Okl.,on the brief), for plaintiff-appellee.

Before BREITENSTEIN, McWILLIAMS and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is a criminal case in which the appellants above named, Hall and Taylor, were convicted of violating the Hobbs Act, 18 U.S.C. Section 1951, ¹ and the Travel Act, 18 U.S.C. Section 1952. ²

The indictment charged offenses against David Hall, W. W. Taylor and R. Kevin Mooney. Mooney, however, entered a plea of guilty and testified against the others. The facts giving rise to the indictments were as follows:

Hall was at the time in question Governor of Oklahoma. W. W. Taylor was president, treasurer and secretary of a corporation called Guaranteed Investors Corporation. Taylor developed a plan to sell ten million dollars in promissory notes of Guaranteed Investors, a newly formed corporation, which notes were to be secured by government guaranteed collateral. Taylor sought to sell these notes to the Oklahoma Employees Retirement System (System). Hall, Taylor and Mooney, the latter being a lawyer for Guaranteed Investors, made an agreement for the plan to be presented to the Chairman of the System's Board of Trustees. Hall did not control the board of the employees retirement system, but he had numerous contacts on the board because he had made appointments of several members of the board. Mooney had brought Hall and Taylor together. Hall agreed to use his influence to sell the plan to the board. He demanded, however, $100,000 to be divided between him and Mooney. Hall contacted John Rogers, Oklahoma Secretary of State and Chairman of the Board of Trustees of the System, and told him that $50,000 would be paid to them, meaning Hall and Rogers, if the Taylor plan was accepted by the board of the employees retirement system. The $50,000 was to be divided equally between Rogers and Hall. Hall then advised Mooney that he (Mooney) was going to pay one-half of the $25,000 which was to be paid to Rogers. True to his word, Hall persuaded the members of the board to approve of the Taylor plan and it did so on December 23, 1974, subject only to a letter of legality from the Attorney General plus a letter of approval from the investment counselor of the board.

The indictment contained six counts. Count 1 alleged that Hall attempted to extort $50,000 from Taylor and Mooney and Guaranteed Investors Corporation in violation of the Hobbs Act, Section 1951, supra.

Count 2 arose under Section 1952, supra. It charged that the three defendants conspired to travel in interstate commerce and to use facilities in commerce with the intent to promote, manage, and carry on unlawful activity and a scheme to bribe a public officer or officers for the purpose of influencing the board of the Employees Retirement System to invest ten million dollars in Guaranteed Investors Corporation in violation of Section 381, Title 21, O.S.A., and to accept a bribe in violation of Section 382, Title 21, O.S.A., in violation of Section 1952, Title 18 U.S.C.

The count further alleged that the conspiracy also involved the payment of $50,000 for which Hall would use his official position to influence Rogers, the Chairman of the Board of Trustees of the System, to call meetings and to gain approval of the sale of the ten million dollars in securities of Guaranteed Investors Corporation.

In Counts 3 and 4, Hall was charged with attempting to bribe John Rogers and with accepting a bribe himself in violation of 21 O.S.A. Sections 381, 382, together with Section 1952 of the Federal Criminal Code.

Counts 5 and 6 charged Taylor and Mooney with attempting to bribe Hall and Rogers in violation of 21 O.S.A. Section 381, together with Section 1952, supra.

Previously Taylor had sought to sell his plan through Mooney to the Board of Trustees of the Retirement System, but to no avail. Only after a meeting with Hall in Fort Worth, Texas, at which time Hall told Mooney that he thought his effort should be worth $100,000 which he characterized as a finders fee and which he offered to share equally with Mooney, did things begin to happen. ³ This took place on December 2, 1974, and the next day Mooney told Hall that Taylor approved of the payment. The very same day Hall had his talk with Rogers, at which time he offered to split the $50,000 with him in exchange for his help in getting the Taylor plan accepted. It was some days later that Hall told Mooney that he expected him to contribute a part of his $25,000 to Rogers.

However, Rogers proceeded to the office of the Oklahoma Attorney General and reported the $25,000 offer. He did so on the same day that the offer was made to him. The Attorney General was out and so Rogers related the offer to an assistant attorney general. On December 4, Rogers met with Mr. Derryberry, the Attorney General, and a few days later the two of them met with the FBI. At that time Rogers agreed to monitor conversations by means of a microphone attached to his person and to his telephone. There is evidence that in the days following the described conversations Hall contacted Rogers and other members of the board of trustees trying to persuade them to approve the plan. Furthermore, in December, Taylor and Mooney met with Rogers, Hall and members of the board on several occasions. At a number of the meetings with Hall and Rogers, the subject of the payment came up. Finally, on December 23, the board approved the plan subject to the obtaining of a letter of legality from the Attorney General and a letter of commitment from the board.

On December 31, Hall told Mooney that any payment to Rogers was illegal under Oklahoma law and that Mooney should caution Taylor against making any such payments to Rogers. Nevertheless, Taylor and Mooney talked about paying Rogers in the form of a consulting fee and in subsequent conversations they talked to him (Rogers) generally about payments in an effort to gain the release of a commitment letter. Subsequently, Taylor showed a check for at least $25,000 to Mooney, which was payable to him (Mooney) but which was destined for Rogers. ⁴ He did not turn it over to him. But, finally, on January 13, Taylor advised Mooney that Rogers had agreed to the release without any payment being made. The next day Mooney went to Oklahoma City from Texas. When Rogers handed over the letter, Mooney was arrested. Hall and Taylor were subsequently arrested.

Mooney pled guilty to Count 2 of the indictment, whereupon the government dropped the charges against him which were set forth in Counts 5 and 6. The charges against Hall and Taylor were tried to a jury starting February 24, 1975, and continuing to March 14, 1975. As we have mentioned earlier, Hall was convicted on Counts 1, 2, 3 and 4, whereas Taylor was convicted on Counts 2, 5 and 6. Both sought judgments of acquittal or judgments notwithstanding the verdict or a new trial. These motions were denied.

The several points raised by the appellants include the following:

1. That the indictment was insufficient.

2. That the court erred in its manner of dealing with a juror who became ill after the cause was submitted to the jury for determination.

3. That prejudice requiring reversal resulted from the pretrial publicity.

4. The refusal to give an instruction requested by Hall and Taylor.

5. The inadequate voir dire of prospective jurors.

6. The receipt in evidence of certain of the tape recordings.

7. Misconduct of the district attorney.

I. WHETHER THE INDICTMENT WAS DEFICIENT

The main objection of both defendants to the indictment arises from the withdrawal of a portion of it as surplusage. In addition, Hall argues that the indictment fails to adequately allege extortion and further contends the indictment was inconsistent in charging him, Hall, with extortion, and Taylor with bribery, offenses which were mutually exclusive and, therefore, failed to give adequate notice of the charge.

A. Whether the elimination of a charge against Hall was error.

We consider first whether the court erred in striking a portion of the indictment. The language which was withdrawn is contained in Counts 2, 3 and 4. In Count 2, the conspiracy count, in the process of alleging the object of the conspiracy, it was said "and to accept such bribe in violation of Section 382, Title 21 O.S.A." In Counts 3 and 4 the court struck out or withdrew "and to accept a bribe himself in violation of Section 382, Title 21 O.S.A." In striking the language the judge explained:

I consider this (a) matter of surplusage and I, out of an abundance of caution, fearful that this could be some measure of inconsistency, not as to Taylor necessarily but as to Hall, so out of an abundance of caution, and since the courts involved with this, treated as surplusage, will set forth alleged violations of the Statute, I have decided to precede (sic ) this way in the case. (R. VIII, p. 168)

Thus, the trial considered the portion stricken as surplusage subject to deletion without destroying the indictment's validity or depriving the court of its jurisdiction. In denying the motions of Hall and Taylor to dismiss, the court again stated that the withdrawn language was surplusage. Now both defendants renew their attack on the trial court's ruling, arguing that the court improperly amended the indictment and thus invaded their...