United States v. Medford

• Decision Date: 07 November 2011
• Docket Number: No. 08–5030.,08–5030.
• Citation: 661 F.3d 746
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Bobby Lee MEDFORD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

661 F.3d 746

UNITED STATES of America, Plaintiff–Appellee,

v.Bobby Lee MEDFORD, Defendant–Appellant.

No. 08–5030.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 22, 2011.Decided: Nov. 7, 2011.

ARGUED: William Robert Terpening, Anderson Terpening, PLLC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF: Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge KEENAN wrote the opinion, in which Chief Judge TRAXLER and Senior Judge HAMILTON joined.

OPINION

KEENAN, Circuit Judge:

Bobby Lee Medford, a former Sheriff of Buncombe County, North Carolina, was convicted in a jury trial of numerous conspiracy and other charges relating to his receipt of bribes in connection with the unlawful operation of video poker machines in Buncombe and other North Carolina counties. Medford raises several challenges to his convictions, including the district court's refusal to sever his trial from that of a co-defendant, the district court's admission of a tape-recorded conversation into evidence containing statements of certain alleged participants in the bribery scheme, and various other issues. Upon our review, we affirm Medford's convictions on all counts.

I.

Medford served as the Sheriff of Buncombe County, North Carolina, from 1994 through 2006, when he lost his bid for re-election. Under a state law enacted in 2000 (the 2000 legislation), Medford was required, among his other duties as Sheriff, to enforce North Carolina's newly-enacted regulations governing video poker machines. See N.C.G.S. § 14–306.1 (2000).

Under the 2000 legislation, which was repealed in 2007,¹ an establishment was permitted to have up to three video poker machines at one store location. Although cash payouts from the poker machines were prohibited under the 2000 legislation, “winnings” from a poker machine could include up to eight “replays” on the machine or a coupon for merchandise not exceeding a value of ten dollars. Each video poker machine in operation was required to be registered with the sheriff's office in the county in which the machine was located.

Once registered, the video poker machines were affixed with registration stickers bearing a unique identification number. Sheriffs were not permitted to charge any fee in connection with the registration of the video poker machines. The 2000 legislation also prohibited the importation into North Carolina of any additional video poker machines, thereby restricting the “pool” of available video poker machines to those machines already located in the state.

In 2001, Medford delegated the primary responsibility for registering video poker machines to Lieutenant John Harrison. Medford assigned Guy Kenneth Penland, a volunteer who held himself out as a “Captain” in the Buncombe County Sheriff's Office, to assist Harrison. When Harrison retired in May 2005, Lieutenant Ronnie “Butch” Davis took over the duty of registering the video poker machines, and continued doing so until Medford lost his bid for re-election and left office in December 2006.

The evidence at trial established that Medford, with the assistance of Harrison, Penland, and Davis (collectively, the co-conspirators), accepted cash payments from the operators of video poker machines (operators) and owners of establishments (store owners) in which the video poker machines were located. ² In exchange for these cash payments, Medford allowed certain of the video poker machines to be registered and operated in ways that violated the restrictions established in the 2000 legislation.

According to the testimony of Harrison and numerous video poker machine operators and store owners, Medford and his co-conspirators were paid cash bribes to register video poker machines, some of which had been brought in from other states in violation of the 2000 legislation. Medford and his co-conspirators also received cash bribes to place video poker machines in particular stores, and to allow the operation of video poker machines that on occasion paid out large sums of cash.

Additionally, Harrison, with Medford's knowledge and consent, organized semi-annual golf tournaments, with participating individuals and organizations paying a “donation” to participate or to “sponsor” a golf hole. Soon after the 2000 legislation was enacted, the majority of the individuals and organizations financially supporting the tournament were video poker machine operators and store owners.

During election years, the proceeds from the golf tournaments were used to support Medford's re-election campaigns. However, during non-election years, the proceeds were sometimes distributed either directly to Medford or deposited, at Medford's direction, into credit union accounts held by Medford or his girlfriend. Although most of the money received in connection with the golf tournaments was in the form of cash, checks were sometimes given and were cashed by members of the Sheriff's Department in stores in which video poker machines were located.

On one particular occasion, at Medford's direction, Sheriff's Department employees converted cash obtained during a golf tournament into money orders. Medford instructed that the money orders be purchased at different post offices in order to keep the purchases under a certain amount, thereby avoiding federal reporting requirements applicable to larger cash purchases.

The record also shows that Henderson Amusement, Inc. (Henderson Amusement), a video poker machine operator based in South Carolina, registered 122 video poker machines in Buncombe County and numerous machines in other North Carolina counties. Henderson Amusement was a frequent provider of cash bribes to Medford and his co-conspirators.

Jerry Pennington, an employee of Henderson Amusement, worked with Penland to register video poker machines that previously had been in use outside North Carolina. Penland brought Pennington to various stores, and placed pressure on the store owners to install the machines in these locations. In return, Pennington paid Penland a commission for every machine that Penland was able to put into operation.

In addition to these commission payments, Pennington, on behalf of Henderson Amusement, regularly made cash payments to Medford, Penland, and the other co-conspirators. Pennington made at least seven such payments directly to Medford, in individual amounts up to $2,500. In total, Henderson Amusement's expense reports showed that the company paid $152,516.43 to individuals associated with the Buncombe County Sheriff's Department, with Medford personally receiving $32,000.

On the basis of this and other evidence, a grand jury indicted Medford, along with Harrison, Penland, and Davis, on charges of: conspiracy to commit extortion under color of official right, in violation of the Hobbs Act, 18 U.S.C. § 1951 (Count One); conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349 (Count Two); five counts of mail fraud and aiding and abetting mail fraud, in violation of 18 U.S.C. §§ 1341, 1346 (Counts Three through Seven); conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Eight); conspiracy to obstruct the enforcement of criminal laws, with the intent to facilitate an illegal gambling business, in violation of 18 U.S.C. § 1511 (Count Ten); and conspiracy to conduct an illegal gambling business, in violation of 18 U.S.C. § 371 (Count Eleven).³

The charges against Medford and Penland were tried together, over their objection, in an eleven-day jury trial. The jury returned a verdict of guilty against Medford and Penland on all counts. The district court sentenced Medford to concurrent terms of imprisonment of 180 months for each of his convictions on Counts 1 through 8, and concurrent terms of imprisonment of 60 months for each of his convictions on Counts 10 and 11. Medford timely filed a notice of appeal.

II.

Medford raises five challenges in this appeal. He asserts that: 1) the district court erred in admitting into evidence a recording of a meeting that occurred between representatives of Henderson Amusement and persons associated with a sheriff's department of a county adjacent to Buncombe County; 2) the district court abused its discretion in denying Medford's motion to sever his trial from Penland's trial; 3) the evidence was insufficient to support Medford's conviction for violating the Hobbs Act; 4) the district court deprived Medford of a fair trial by subjecting him to inconsistent and biased treatment; and 5) the Honest Services Fraud statute, 18 U.S.C. § 1346, on which the charges in Counts Three through Seven were based, is unconstitutionally vague. We address each argument in turn.

A.

Medford first argues that the district court erred in admitting into evidence a recording of a December 19, 2006 meeting (the December 19 meeting) attended by Jamie Henderson, a co-owner of Henderson Amusement, Jeff Childers, an employee of Henderson Amusement, John Parker, a former deputy sheriff in neighboring Rutherford County, and Jack Conner, the newly-elected Sheriff of Rutherford County. According to Medford, this recording should not have been admitted into evidence because the recording related to a separate conspiracy in Rutherford County to which Medford was not a party, and occurred after Medford already had left office following his loss in the 2006 election. Thus, Medford asserts that the recording did not qualify for admission under the hearsay exclusion provided by Rule 801 for statements made by co-conspirators during the course and in furtherance of a conspiracy.⁴ See Fed.R.Evid. 801(d)(2)(E).

The record shows that neither Medford nor any of the co-conspirators named in Medford's indictment attended the December 19 meeting, which was...