U.S. v. LeMaster
| Decision Date | 07 July 1995 |
| Docket Number | No. 94-5097,94-5097 |
| Citation | 54 F.3d 1224 |
| Parties | 42 Fed. R. Evid. Serv. 494 UNITED STATES of America, Plaintiff-Appellee, v. Arthur David LeMASTER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Edwin J. Walbourn, III, Office of the U.S. Atty., Covington, KY, Susan J. Park (argued), U.S. Dept. of Justice, Crim. Div., Public Integrity Section, and Bruce E. Reinhart (briefed), Washington, DC, for plaintiff-appellee.
Eldred E. Adams, Jr., Adams & Adams, Louisa, KY and Alva A. Hollon, Jr. (argued
and briefed), Hollon, Hollon, Hollon & Collins, Hazard, KY, for defendant-appellant.
Before: KENNEDY and JONES, Circuit Judges; DE MASCIO, * District Judge.
DE MASCIO, D.J., delivered the opinion of the court, in which KENNEDY, J. joined. JONES, J. (pp. 1233-34), delivered a separate dissenting opinion.
DE MASCIO, District Judge.
This is an appeal from a jury conviction and sentence on count III of an indictment charging Arthur David LeMaster with knowingly and willfully making false statements to an FBI agent investigating allegations of corruption in the Kentucky General Assembly in violation of 18 U.S.C. Sec. 1001. The jury found LeMaster not guilty of committing extortion under color of official right in violation of the Hobbs Act, 18 U.S.C. Sec. 1951 (count I) and interstate travel in aid of bribery in violation of U.S.C. Sec. 1952 (count II). In this appeal, LeMaster contends that the district court erred in holding that the "exculpatory no" doctrine did not apply to the facts in the case; in holding that the statements he made during his March 31, 1992 interview were material; in holding that an out-of-court statement made by LeMaster to Senator Fred Bradley was inadmissible hearsay and not probative of LeMaster's state of mind; in holding that Bradley's response to that statement was irrelevant; in holding that LeMaster made false statements to the FBI to conceal his attempted extortion, justifying an upward departure; and in holding that the jury verdicts were not inconsistent and irreconcilable. We find that the district court properly declined to apply the "exculpatory no" doctrine to the facts in this case; that the statements made by defendant at his interview were material to the ongoing FBI investigation; that the court's evidentiary rulings were not erroneous; and that both the verdicts returned and the sentence imposed are consistent with the law in this circuit. Accordingly, we affirm.
At LeMaster's trial, John W. Spurrier, a lobbyist for the harness horse racing industry, was the government's principal witness. Spurrier had known LeMaster for approximately five years. During that time LeMaster was the Chairman of the Business Organization(s) and Profession(s) (BOP) Committee of the Kentucky State Senate. The 1992 Kentucky General Assembly had under consideration an omnibus horse racing bill that contained a "breed to breed" provision favored by the thoroughbred horse racing industry. This provision would have been, however, financially detrimental to the harness racing industry. This "breed to breed" provision had to first clear the BOP committee chaired by LeMaster before it could be enacted by the General Assembly.
In January 1992, Spurrier was interviewed by the FBI as part of an ancillary investigation. He told the FBI that he paid LeMaster approximately $7,000 in 1990 in exchange for favorable action on pending horse racing legislation, and that LeMaster referred to the payments as "bets." Spurrier further admitted that he and another lobbyist were planning to influence the course of the pending "breed to breed" legislation by giving gratuities to various legislators including LeMaster. Spurrier agreed to cooperate with the investigating agents.
Spurrier met with LeMaster on January 27, 1992. He was working undercover and wore a tape recorder to record his conversation with LeMaster. He told LeMaster that the harness racing industry was extremely concerned about the "breed to breed" provision in the pending legislation and was willing to pay LeMaster as much as $5,000 during the racing season to kill the proposal. Although LeMaster said that he would not accept money in exchange for a commitment, he did solicit a trip to Florida from Spurrier. The next day, Spurrier invited LeMaster to join him for a Florida weekend. It was understood that Spurrier would reimburse LeMaster's expenses. During this conversation, they again discussed the pending "breed to breed" provision and the injurious effect it would have on harness racing.
When LeMaster flew to Florida, Spurrier drove him from the airport to the hotel. During this ride, LeMaster advised Spurrier that the cost of his flight was $906. Spurrier gave LeMaster $1,000 which LeMaster referred to as a "bet." Spurrier then agreed to give LeMaster an additional $500 the next day to cover his hotel bill. This is but the first of a series of recorded conversations played for the jury. In all, the recorded conversations between Spurrier and LeMaster supported the conclusion that LeMaster received at least $6,000 from Spurrier through payments made in both Florida and Kentucky. Each time he received a payment from Spurrier, LeMaster referred to the money as a "bet". In the end, a horse racing bill without the "breed to breed" provision was reported out of LeMaster's committee and enacted by the legislature. Spurrier told LeMaster that the legislation as passed was totally acceptable. Shortly thereafter, Spurrier gave LeMaster $2,500.
On March 31, 1992, five days after receiving the $2,500, LeMaster was interviewed by Special Agents Adams and Antle. The agents advised LeMaster in the presence of his colleague, Senator Fred Bradley, an attorney, that the FBI was investigating allegations that certain legislators were illegally receiving money in exchange for favorable votes on pending legislation. On one occasion, during the interview, LeMaster, who is an attorney familiar with criminal law, stopped the interview to consult with Senator Bradley. During the questioning, LeMaster was asked whether he was offered or accepted cash or anything else of value in 1992 from Spurrier:
Q: Did you receive any cash, gratuity, or any other thing of value from anyone on that trip? That's on the trip to uh Fort Lauderdale?
LeMaster: Uh ... Yes sir..I guess I ...
. . . . .
A: And uh uh ... you know I..I ... I went to Gulf Stream Park, to the race track and uh ... uh ... I..you know I guess I accepted lunch there at the races from uh ... uh ... I suppose the the track paid for it I don't know.
. . . . .
. . . . .
J.A. at 234-238. Later during the interview the agents advised LeMaster that they had tape recordings of him accepting cash from Spurrier in Florida and Kentucky. He was then asked:
J.A. at 256. LeMaster's "no, sir" answers to the questions about receiving cash were clearly false.
Based upon case law in other circuits, LeMaster strongly urges us to apply the "exculpatory no" doctrine to 18 U.S.C. Sec. 1001 under the circumstances of this case. 1 He argues that the majority of the circuit courts of appeal have adopted the doctrine and those that have would apply the doctrine to the facts in this case. Although a majority of the circuits have adopted the "exculpatory no" doctrine, their reasoning in applying the doctrine varies greatly. The Fifth Circuit, in Paternostro v. United States, 311 F.2d 298 (5th Cir.1962), was the first to adopt the doctrine to limit the application of Sec. 1001. In doing so, the court approved the rationale announced in five district court cases 2 that declined to apply Sec. 1001 to the facts under consideration. In Paternostro, the court summarized the principles advanced in those district court cases, stating:
The appellant in the case at bar made no statement relating to any claim on his behalf against the United States or an agency thereof; he was not seeking to obtain or retain any official position or employment in any agency or department of the Federal Government; and he did not aggressively and deliberately initiate any positive or affirmative statement calculated to pervert legitimate functions of government. At most, ... considering all he said, the answers were mere negative responses to questions propounded to him by an investigating agent during a question and answer conference, not initiated by the appellant. We conclude that the court erred in failing to dismiss [the Sec. 1001 count].
The First Circuit followed the reasoning of Paternostro in adopting the "exculpatory no" limitation to Sec. 1001. United States v. Chevoor, 526 F.2d 178, 183-84 (1st Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976). . The Seventh Circuit adopted the doctrine in a very limited way in United States v. King, 613 F.2d 670, 674 (7th Cir.1980) (...
To continue reading
Request your trial
-
U.S. v. Rogers
...F.2d at 1319. The statement need not actually influence the agency, but it must have the capacity to do so. Id. In United States v. LeMaster, 54 F.3d 1224 (6th Cir.1995), cert. denied, 516 U.S. 1043, 116 S.Ct. 701, 133 L.Ed.2d 657 (1996), the FBI knew that the defendant had accepted cash fr......
-
U.S. v. Webber
...of false statement prosecutions."); United States v. Rogers, 118 F.3d 466, 472 (6th Cir. 1997) (same); United States v. LeMaster, 54 F.3d 1224, 1230-31 (6th Cir.1995). 18. See also Virgin Islands v. Davis, 43 F.3d 41, 44-45 (3d Cir. 1994); United States v. Patty, 992 F.2d 1045, 1049 (10th C......
-
U.S. v. Ismail
...§ 1001 was "a conclusion of law," it had to be "fully supported by the evidence, direct or circumstantial." See United States v. LeMaster, 54 F.3d 1224, 1230 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 701, 133 L.Ed.2d 657 (1996). Providing a false name or social security number ......
-
U.S. v. Waldner
...defendant told the he to conceal aspects of the offense for which he was arrested." 324 F.3d at 1032 (rejecting United States v. LeMaster, 54 F.3d 1224, 1232 (6th Cir.1995)). Robertson is distinguishable, because Defendant did not make a false statement in response to law enforcement questi......
-
False statements and false claims.
...because defendant's lying to a federal officer was not outside the "heartland" of [section] 1001). (130.) See United States v. LeMaster, 54 F.3d 1224, 1232-33 (6th Cir. 1995) (affirming upward adjustment under [section] 5K2.9 where defendant made false statements to conceal attempted (131.)......
-
False statements and false claims.
...statements were not material because United States Attorney recognized instantly that statements were false); United States v. LeMaster, 54 F.3d 1224, 1230 (6th Cir. 1995) (explaining false statement may be material even if agent who hears it suspects it is (60.) See United States v. Ross, ......
-
False statements and false claims.
...statements were not material because United States Attorney recognized instantly that statements were false); United States v. LeMaster, 54 F.3d 1224, 1230 (6th Cir. 1995) (explaining false statement may be material even if agent who hears it suspects it is (60.) See United States v. Ross, ......
-
False statements and false claims.
...(allowing for discretionary increase if offense was intended to facilitate or conceal another offense); see United States v. LeMaster, 54 F.3d 1224, 1232-33 (6th Cir. 1995) (affirming upward adjustment under [section] 5K2.9 where defendant made false statements to conceal attempted (133.) 1......