624 F.2d 1291 (5th Cir. 1980), 79-5566, United States v. Gerald

Docket Nº:79-5566.
Citation:624 F.2d 1291
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gaston GERALD, Defendant-Appellant.
Case Date:August 25, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1291

624 F.2d 1291 (5th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gaston GERALD, Defendant-Appellant.

No. 79-5566.

United States Court of Appeals, Fifth Circuit

August 25, 1980

Rehearing En Banc Denied Oct. 9, 1980.

Page 1292

[Copyrighted Material Omitted]

Page 1293

James McPherson, New Orleans, La., for defendant-appellant.

Donald L. Beckner, U. S. Atty., C. Michael Hill, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee.

Appeal from the United States District Court of the Middle District of Louisiana.

Before GODBOLD, SIMPSON and THOMAS A. CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

Appellant Gaston Gerald, a Louisiana State Senator, was indicted in the district court under charges of conspiracy, aiding and abetting attempted extortion, attempted extortion, and perjury. The jury returned a verdict of guilty on count II on the indictment which charged Gerald as a principal or an aider and abettor in an attempted extortion. He was acquitted of the remaining four counts. In this appeal Gerald argues: that the trial court voir dire of the pretrial publicity issue was reversibly inadequate; that the evidence was insufficient to support the jury verdict; that the trial court committed reversible error in certain jury instructions; that counts I and II of the indictment charging conspiracy and attempted extortion were multiplicitous; and that the prosecutor exceeded the bounds of permissible cross-examination of a defense character witness. We find no meritorious ground for reversal and affirm.

FACTS

Taking the view most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), there is evidence in the record from which the following facts could be found.

Charles Carter Construction Company, a large general contracting firm located in Baton Rouge, Louisiana, constructed two large public buildings in Baton Rouge under contract with East Baton Rouge Parish. The construction was not completed by the date specified in the contract because of various complications. Consequently Charles Carter, the prime mover behind the company began to hear rumors that the City-Parish Council, the legislative body for

Page 1294

East Baton Rouge Parish, intended to enforce a late charge provision of the contract by assessing Carter $137,000. Under the terms of the contract the Council, by a vote of at least seven of the twelve members, had authority to assess late charges and to withhold that amount from final payment.

Several persons sought to capitalize on Carter's vulnerable position before the Council. One or more Councilmen and at least one appointed official informed Carter that the late charge would be assessed unless he paid them $25,000 to fix the vote of the Council. Carter told one member of the Council that he was considering bringing the matter to the attention of the F.B.I. Quite understandably these extortion attempts halted. Indeed, the City-Parish personnel director, Sid Lacy, who had previously propositioned Carter, would not even return Carter's telephone calls.

But there were others who perceived an opportunity for gain in Carter's dilemma with the Council. Carter informed Jack Menzie of the Lacy offer and Menzie relayed the information to appellant. At the January 11, 1978 Council meeting there were six votes in favor of assessment, one less than needed to carry the assessment. The issue was continued until the next scheduled meeting. On January 14 Carter contacted the F.B.I. and agreed to assist in apprehending the extortionists. Meanwhile Menzie and appellant Gerald met and agreed to pick up Lacy's earlier "deal". Menzie informed Carter that Lacy could not be trusted and that he, Menzie had an "acquaintance" who would procure a favorable Council vote for the same figure, $25,000. Carter agreed and gave Menzie $15,000 in earnest money for transmittal to the acquaintance. The money was to be returned if a favorable vote was not obtained. Menzie delivered the money directly to appellant. Sometime between the first Council vote and the second Council vote Gerald persuaded one Council member to change his vote to Carter's favor. But another member of the Council changed his former favorable vote causing the vote to deadlock for the second time at the January 25 meeting.

On February 3, 1978 appellant had lunch with Carter. Their conversation was covertly recorded by a body recorder that Carter was wearing. The record reveals the following conversation.

Carter informed Gerald that he had given $15,000 to Menzie for the acquaintance to fix the Council vote but Menzie had not informed him of the identity of the acquaintance. Gerald replied: that he had done everything he could to help by talking with the mayor, a councilman and several others; that Carter should go "all out" to get the assessment waived at the next Council meeting; and that Menzie could be trusted. Gerald intimated that some members of the Council were seeking $75,000 for a favorable vote and that therefore the $25,000 deal proposed by Menzie and acquaintance was a bargain.

Nevertheless at the February 8, 1978 meeting the Council voted to assess the full $137,000 in late charges. Pursuant to the money back guarantee Menzie retrieved the $15,000 from Gerald and returned it to Carter.

The F.B.I. subsequently contacted Menzie, obtained his agreement to cooperate and fitted him with a body recorder. The next taped conversation of Gerald took place outside the Senate Chamber of the Louisiana Legislature. After Menzie informed Gerald that the government was interested in the envelope containing Carter's $15,000, the following conversation ensued:

GERALD: . . . Let's make sure that we're right . . . on our stories.

GERALD: Uh, . . . you called me one day and told me you could get me $25,000.00. You were going to bring something. No, you were going to bring something to see if I could get. . . . Tell me now, so we can make sure I get my story straight."

Page 1295

GERALD: Uh, who was it. . . . Let me ask you this . . . there was somebody else talked about. . . . Bob said he was supposed to meet somebody else . . . or somebody approached Bob.

MENZIE: It's Sid Lacy. Bob told me Sid Lacy approached him to start with.

MENZIE: Drew (Menzie's attorney) tells me that . . . that . . . that . . . ya know. . . . I got to go up there before that grand jury and tell them the truth.

GERALD: What does that mean?

MENZIE: Well, ya know. . . . I told you. . . . I never did tell him your name. I never did tell him where the money was going to go. That . . . ya know . . . and I didn't look. . . .

GERALD: Yeah, but he knew then.

Government Exhibit 14.

PRETRIAL PUBLICITY

Appellant filed a written pretrial motion for an individual voir dire of the veniremen concerning allegedly prejudicial pretrial publicity. The magistrate ruled that the motion was premature and that decision would be postponed until trial. The trial began August 13, 1979, some six months after the motion for individual voir dire was heard by the magistrate and some eight months after the indictment was filed. The voir dire was conducted in open court in the presence of all jurors. The first statement made by the district judge and the only portion of the record that gives the slightest indication of the amount or nature of the pretrial publicity follows:

Now, are there any members of the jury who know anything about this case? There has been publicity on this case...

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85 practice notes
  • 676 F.2d 995 (4th Cir. 1982), 81-5110, United States v. McCaskill
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • April 15, 1982
    ...v. Lawrenson, 298 F.2d 880, 884 (4th Cir. 1962), cert. denied, 370 U.S. 947, 82 S.Ct. 1594, 8 L.Ed.2d 812; United States v. Gerald, 624 F.2d 1291, 1300 (5th Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348; United States v. Simmons, 281 F.2d 354, 356 (2d Cir. 1960). Ac......
  • 941 F.2d 309 (5th Cir. 1991), 90-1287, United States v. Lemons
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • August 27, 1991
    ...885 F.2d 1240, 1245 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1807, 108 L.Ed.2d 938 (1990); United States v. Gerald, 624 F.2d 1291, 1300 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 [5] The court then supported its reading of § 1344 by an examinati......
  • 484 N.E.2d 140 (Ohio 1985), 84-1885, State v. Mapes
    • United States
    • Ohio Supreme Court of Ohio
    • August 9, 1985
    ...See, also, Rosales-Lopez v. United States (1981), 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22; United States v. Gerald (C.A. 5, 1980), 624 F.2d 1291, rehearing denied (1980), 629 F.2d 1350, certiorari denied (1981), 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348. Appellant has demonstrated no......
  • 469 N.E.2d 119 (Ill. 1984), 55539, People v. Holman
    • United States
    • Illinois Supreme Court of Illinois
    • June 29, 1984
    ...and only in situations where it is necessary to prevent a great miscarriage of justice. See United States v. Gerald (5th Cir.1980), 624 F.2d 1291, 1299; United States v. DiBenedetto (8th Cir.1976), 542 F.2d 490, 494; United States v. Mooney (8th Cir.1969), 417 F.2d 936, 939; Eaton v. United......
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84 cases
  • 676 F.2d 995 (4th Cir. 1982), 81-5110, United States v. McCaskill
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • April 15, 1982
    ...v. Lawrenson, 298 F.2d 880, 884 (4th Cir. 1962), cert. denied, 370 U.S. 947, 82 S.Ct. 1594, 8 L.Ed.2d 812; United States v. Gerald, 624 F.2d 1291, 1300 (5th Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348; United States v. Simmons, 281 F.2d 354, 356 (2d Cir. 1960). Ac......
  • 941 F.2d 309 (5th Cir. 1991), 90-1287, United States v. Lemons
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • August 27, 1991
    ...885 F.2d 1240, 1245 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1807, 108 L.Ed.2d 938 (1990); United States v. Gerald, 624 F.2d 1291, 1300 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 [5] The court then supported its reading of § 1344 by an examinati......
  • 484 N.E.2d 140 (Ohio 1985), 84-1885, State v. Mapes
    • United States
    • Ohio Supreme Court of Ohio
    • August 9, 1985
    ...See, also, Rosales-Lopez v. United States (1981), 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22; United States v. Gerald (C.A. 5, 1980), 624 F.2d 1291, rehearing denied (1980), 629 F.2d 1350, certiorari denied (1981), 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348. Appellant has demonstrated no......
  • 469 N.E.2d 119 (Ill. 1984), 55539, People v. Holman
    • United States
    • Illinois Supreme Court of Illinois
    • June 29, 1984
    ...and only in situations where it is necessary to prevent a great miscarriage of justice. See United States v. Gerald (5th Cir.1980), 624 F.2d 1291, 1299; United States v. DiBenedetto (8th Cir.1976), 542 F.2d 490, 494; United States v. Mooney (8th Cir.1969), 417 F.2d 936, 939; Eaton v. United......
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