U.S. v. Butler, s. 79-5046
| Decision Date | 26 March 1980 |
| Docket Number | 79-5047,Nos. 79-5046,s. 79-5046 |
| Citation | 618 F.2d 411 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James L. BUTLER and F. Lee Hyden, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Ed M. Hurley, Memphis, Tenn., for defendants-appellants in No. 79-5046.
David E. Caywood, James T. Reed, Memphis, Tenn., for defendants-appellants in No. 79-5047.
W. J. Michael Cody, U. S. Atty., W. Hickman Ewing, Jr., Memphis, Tenn., for plaintiff-appellee.
Before ENGEL, KEITH and MERRITT, Circuit Judges.
Defendants-appellants F. Lee Hyden and James L. Butler appeal from a jury conviction of four counts of conspiracy and extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. Appellants were charged with one count of conspiring to violate the Hobbs Act, Title 18 United States Code § 371, and three counts each of violation of the substantive provisions of the Hobbs Act. The indictment alleged the occurrence of three specific instances in which appellants each knowingly and willfully affected interstate commerce by extortion, in that property was obtained from individuals whose consent was wrongfully induced under "color of official right" in violation of the Hobbs Act. The jury returned a verdict of guilty on all counts. 1 We affirm.
Appellant F. Lee Hyden was one of three elected members of the Shelby County Tennessee Board of Commissioners, having been elected in 1966, and serving in the capacity of Commissioner of Roads, Bridges and the Penal Farm until January 1, 1976. James L. Butler was the Director of Public Works for Shelby County, appointed by the three-member Shelby County Board of Commissioners in 1972, and serving in this capacity until December 31, 1975. As Director of Public Works, Butler worked directly for, and was ultimately responsible to, Commissioner Hyden, with respect to the supervision of the day-to-day operations of the Department.
The conspiracy count of the indictment charged that appellants Hyden and Butler conspired to use their offices from at least as early as September, 1972 until January, 1976, to obtain money and other things of value from persons in Shelby County in exchange for their actions in advancing priorities for the construction and appropriation of monies for certain road projects in the County. The indictment charged specifically that appellants approached various land developers who were interested in having Shelby County construct roads to or through land which they intended to develop. Appellants would agree to advance the priorities on the construction of certain roads, or cause monies to be appropriated for the purchase of rights-of-way through property owned by the developers.
The indictment further charged that as a "quid pro quo " for having advanced the priorities on the construction of certain roads in Shelby County, appellant Hyden sought the guaranty of a certain developer, William Cary Whitehead, on loans which he (Hyden) sought to obtain from local banks. Moreover, for certain road projects, Hyden and Butler were charged with causing monies to be appropriated by the Shelby County Quarterly Court 2 for the purchase of rights-of-way from the developers, with the understanding that certain of the monies disbursed for the purchase of the rights-of-way would be kicked back to them. The kickback was accomplished by instructing the developer who was to kick back the money to conceal the arrangement by transferring the money through designated conduits. Appellants would obtain the assistance of persons outside of Shelby County in concealing the kickbacks by negotiating sham transactions involving sales of equipment and real estate. 3
The indictment then set forth 42 overt acts committed separately and/or in combination by appellants in furtherance of the alleged conspiracy.
After initial discovery motions and motions for production of documents, pursuant to Rule 12(d)(2) of the Federal Rules of Criminal Procedure, a jury was empaneled and the case proceeded to trial. The jury deliberated approximately four hours before returning to announce its verdict, finding appellants guilty of conspiracy to violate the Hobbs Act, and finding each guilty of three separate substantive counts of violations of the Hobbs Act. Hyden and Butler were sentenced to three and one-half years imprisonment, and three years imprisonment, respectively.
Each appellant filed a separate appeal from their conviction, alleging the following trial errors:
1) The evidence presented by the United States of conspiracy was insufficient to support a finding of conspiracy, and the district court erred in denying appellants' motion for severance and dismissal of count one (the conspiracy count).
2) Each appellant contends that his conviction under both the substantive and conspiracy counts of the indictment must be reversed because the district court, in the absence of evidence sufficient to prove the existence of a conspiracy, improperly allowed the joinder of unrelated crimes allegedly committed by the two co-defendants. Each appellant claims prejudice to his right to be presumed innocent by the trial court's refusal to grant their motions to sever the trial. Appellant Hyden claims particular prejudice to his right to be presumed innocent as a result of co-defendant Butler's admissions.
3) Appellant Butler claims error in the jury instructions concerning the requisite elements of proof for extortion "under color of official right", as proscribed by the Hobbs Act.
4) Appellant Butler claims additional error in the trial court's refusal to grant either a mistrial, or his motion for a new trial, premised on the government's conduct with respect to the introduction of an exhibit.
We find that the United States did present evidence sufficient for a jury to find a conspiracy between Hyden and Butler to violate the Hobbs Act. The trial court did not err in denying appellants' motions for severance and for dismissal of the conspiracy count. Moreover, in view of this court's recent holding in United States v. Harding, 563 F.2d 299 (6th Cir. 1977), we do not find the trial court's jury instructions on extortion sufficiently erroneous to constitute reversible error.
Appellants Hyden and Butler contend that the United States at no time presented any proof that they conspired to extort from the government's chief witness, Whitehead. Appellants each admit that they had separate dealings with Whitehead, but deny acting together in furtherance of any conspiracy. Appellants submit that had the court granted their motions for dismissal as to the conspiracy count, then a severance would have been granted and each would have received a fair trial free of the taint resulting from the likely inference from that if one were proved guilty then the other must likewise be guilty.
In United States v. Richardson, 596 F.2d 157, 162 (6th Cir. 1978), this court cited with approval the necessary elements of conspiracy stated in United States v. Williams, 503 F.2d 50 (6th Cir. 1974):
In showing the existence of a conspiracy, two elements must be proven: an agreement between two or more persons to act together in committing an offense, and an overt act in furtherance of the conspiracy. 503 F.2d at 54.
Proof of the requisite knowledge and intent on the part of conspirators need not be made by direct evidence. Rather, circumstantial evidence or permissible inferences or deductions from facts are sufficient to make a showing of conspiracy. United States v. Hearn, 496 F.2d 236 (6th Cir. 1974) cert. denied, 419 U.S. 1048, 95 S.Ct. 622, 42 L.Ed.2d 642 (1974); United States v. Chambers, 382 F.2d 910 (6th Cir. 1967). "It is the common design which is the essence of the conspiracy or combination; and this may be made to appear when the parties steadily pursue the same object, whether acting separately or together, by common or different means, but always leading to the same unlawful result." Poliafico v. United States, 237 F.2d 97, 106 (6th Cir. 1956).
In determining whether the evidence presented in this case is sufficient to support the conviction under the conspiracy count, the evidence must be viewed in the light most favorable to the United States. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Our review of the record leads us to conclude that there is sufficient evidence from which a jury could properly infer the existence of a conspiracy between appellants Hyden and Butler to extort money and property from Whitehead.
Hyden and Butler worked closely with each other on the three road projects, Germantown Road Extended, North Watkins, and Holmes, whose favored treatment gave rise to their indictments. The United States produced no direct evidence of an explicit agreement between Hyden and Butler to work to advance the priorities of the three road projects. However, the government did introduce evidence that they each carried out their respective functions, each integral to the advancing of the priorities of Whitehead's projects, with the end result that in two cases Hyden received loan guarantees, and $100,000 in kickbacks, and in a third, Butler received $108,000 in money and real estate.
With respect to the advancement of the construction priority for Germantown Road Extended, the record shows that Whitehead was approached by Hyden seeking (Whitehead's) help in arranging a loan. In return for Whitehead's personal assistance in arranging the loan, Hyden offered to move up the priority of the Germantown Road Project. Whitehead agreed to the arrangement with the understanding that he would help Hyden arrange a loan only if the Shelby County Court first approved the advancement in priority of the Germantown Road Extended Project. Hyden then asked Whitehead to submit a letter to him in his official capacity as Commissioner stating a need for the immediate...
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