672 F.2d 531 (5th Cir. 1982), 80-3927, United States v. Dozier

Docket Nº:80-3927.
Citation:672 F.2d 531
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gilbert L. DOZIER, Defendant-Appellant.
Case Date:April 08, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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672 F.2d 531 (5th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,


Gilbert L. DOZIER, Defendant-Appellant.

No. 80-3927.

United States Court of Appeals, Fifth Circuit

April 8, 1982

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Camille F. Gravel, Jr., Helen G. Roberts, Alexandria, La., William H. Jeffress, Jr., Washington, D.C., for defendant-appellant.

Mitchell B. Lansden, Ian F. Hipwell, Donald L. Beckner, U. S. Atty., Baton Rouge, La., for plaintiff-appellee.

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

Before WISDOM, SAM D. JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

Gilbert L. Dozier was elected Commissioner of Agriculture of the State of Louisiana on December 13, 1975, and took office on May 10 of the following year. His bid for reelection in December, 1979, conducted in the midst of a publicized federal investigation of his activities as Commissioner, was unsuccessful. In January, 1980, a federal grand jury returned a five-count indictment against Dozier.

Count One charged that Dozier had violated the Racketeer Influence and Corrupt Organization (RICO) statute, 18 U.S.C. § 1962(c) by conducting the affairs of the Louisiana Department of Agriculture-an "enterprise" within the meaning of 18 U.S.C. § 1961(4)-through a pattern of racketeering activities. In all, Count One described twelve separate acts of racketeering that Dozier allegedly had committed between December 1975 and October 1979. Each allegation depicted Dozier's solicitation of money from a person or business that was or might have been affected by some action of the Louisiana Department of Agriculture. Briefly, the twelve allegations, designated by letters in the indictment, were as follows:

(A) That Dozier, in August 1978, attempted to solicit $10,000 from Edward Simpson, owner of a livestock auction barn, in return for providing a charter through the Livestock Charter Commission and Sanitary Board;

(B) That Dozier, in November 1978, extorted $10,000 from Floyd "Shorty" Giles by promising to deliver an auction barn charter;

(C) That Dozier, in early 1976, attempted to extort $200,000 from Louisiana milk processors through Temple Brown, president of Brown's Velvet Dairy, in return for a promise to lower the price of milk;

(D) That Dozier, in May 1976, extorted $4,900 from Walter Davis by promising to provide a pesticide license;

(E) That Dozier, in August 1979, attempted to extort $20,000 from Alvin "Bugs" Burger, owner of a pest control company, in return for using his influence with the Louisiana Structural Pest Control Commission, which had questioned Burger's ability to supervise his Louisiana concerns while residing in Florida;

(F) That Dozier, in July or August 1979, threatened the owner of an aerial crop dusting service, Roy True, with shutdown unless True paid him $2,000;

(G) That Dozier, in April 1978, asked James Pruitt for $10,000 in return for securing him a seat on the Louisiana State Market Commission;

(H) That Dozier, from January to May 1977, attempted to extort $25,000 from Nicholas Fakouri and the Vermillion Dairymen's Cooperative Association in return for a loan guarantee from the State Market Commission;

(I) That Dozier, from January to September 1976, attempted to solicit a kickback of $10,000 from consultants Burk & Associates in return for contracts on a proposed New Orleans Food Distribution Center;

(J) That Dozier, from January to September 1976, attempted to extort $20,000 from the Louisiana Computer Company in return for favorable treatment from the state;

(K) That Dozier, throughout 1976, attempted to solicit $1,000 from each member of the Louisiana Livestock Market Association in return for a promise to restore state-compensated private veterinarians to the auction markets and to raise the fees charged by the markets on tests for cattle brucellosis;

(L) That Dozier, in March 1976, accepted a bribe of $2,000 from John Lambert in return for promising to help Lambert obtain a job in the Department of Agriculture.

Count One also designated eleven of these twelve incidents (paragraphs A through K, supra ) as violations of the Hobbs Act, 18 U.S.C. § 1951, and the Louisiana

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bribery statute, La.Rev.Stat.Ann. § 14:118 (West 1974 & Supp. 1981). One incident (paragraph L) was alleged only as a violation of the state bribery statute. Finally, Counts Two through Five isolated four of these alleged transactions (paragraphs B through E, supra ) as separate offenses under the Hobbs Act.

The trial began on September 2, 1980. On September 23, the jury returned a verdict finding Dozier guilty on all counts except Count Four. The district court denied Dozier's motions for judgment of acquittal and for a new trial. On November 7, the court sentenced Dozier to five years imprisonment and a fine of $25,000 for the RICO conviction (Count One), to a consecutive five-year term of imprisonment on Count Two, and to five years of probation on Count Three. The court suspended the imposition of sentence on Count Five and, as to imprisonment only, on Count Three.

Dozier maintained throughout his trial that his various solicitations were nothing more than the ordinary fundraising activities of a public official faced with the financial burdens of electioneering. Pursuing this theme on appeal, Dozier contests the applicability of both RICO and the Hobbs Act to facts adduced by the government. Interspersed with these matters of statutory construction are protests regarding some of the court's rulings and its instructions to the jury. Having reviewed Dozier's arguments with care, we believe that the convictions must stand on every count. In giving our reasons, we will address these contentions in the order presented by the appellant.

I. Is the Hobbs Act Unconstitutionally Vague as Applied to Elected Officials?

The Hobbs Act prohibits the obstruction of commerce by extortion, which it defines as "the obtaining of property from another, with his consent, induced by wrongful use or actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2) (emphasis supplied). Only last year we joined eight other circuits in holding "that Hobbs Act violations based on extortion by a public official need not include proof of threat, fear, or duress." United States v. Williams, 621 F.2d 123, 124 (5th Cir. 1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981). Our decision in Williams reinstated a jury verdict convicting an elected school board member who had solicited and received airline tickets and cash from a contractor doing business with the school board. In so doing, we overturned the district court's conclusion that the phrase "obtaining ... under color of official right" is unconstitutionally vague.

Dozier necessarily concedes, therefore, that application of the Hobbs Act to punish solicitation of funds by an elected official is established precedent in this circuit. He seeks to distinguish Williams, however, by pointing out that the school board member convicted in that case made no attempt to characterize or explain his "donations" as legitimate political contributions. Dozier further submits that our rejection of the facial constitutional challenge posed in Williams does not preclude a holding that the Act's language is unconstitutionally vague as applied to an elected official confronted by the recurrent need to solicit and accept campaign contributions. As written and as previously interpreted, 1 Dozier continues, the Act's injunction against taking money "under color of official right" provides no guidelines or protection for innocent fundraising

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and can only exert a chilling effect on this constitutionally protected activity.

The Supreme Court has recognized the important function of financial contributions in expressing support for candidates and fueling political debate. E.g., Buckley v. Valeo, 424 U.S. 1, 21, 96 S.Ct. 612, 635, 46 L.Ed.2d 659 (1976); Citizens Against Rent Control v. City of Berkeley, --- U.S. ----, ---- - ----, 102 S.Ct. 434, 435-436, 70 L.Ed.2d 492 (1981). Moreover, as Dozier is quick to point out, commentators and judges have expressed concern lest overzealous but unwitting fundraisers be swept up in a net originally intended for the truly venal. Criticizing a Second Circuit decision applying the Hobbs Act against a Commissioner of Public Works who had demanded campaign contributions from an engineering firm under contract to his department, one writer has observed:

(I)f a public official who asks for a political contribution from one who does, or may do, business with the government can be prosecuted on proof of those facts alone, then the Hobbs Act has become an extraordinary mechanism for controlling political activity on the state and local levels.... If (United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert. denied, 425 U.S. 971 (96 S.Ct. 2167, 48 L.Ed.2d 794) (1976) ) means that a local government official commits extortion by soliciting a contribution from an organization that has or might have contacts with his agency, and is thereby liable to be imprisoned for twenty years, one may well ask whether a governor who attends a fundraising dinner and solicits contributions from the businessmen present has committed a felony.

Ruff, Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 Geo.L.J. 1171, 1196 (1977) (quoted in United States v. Cerilli, 603 F.2d 415, 437 (3d Cir. 1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980) (Aldisert, J., dissenting)). See also...

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