693 F.2d 1318 (11th Cir. 1982), 82-8302, United States v. Borders

Docket Nº:82-8302.
Citation:693 F.2d 1318
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William A. BORDERS, Defendant-Appellant.
Case Date:December 10, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1318

693 F.2d 1318 (11th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

William A. BORDERS, Defendant-Appellant.

No. 82-8302.

United States Court of Appeals, Eleventh Circuit

December 10, 1982

John A. Shorter, Jr., Washington, D.C., and Marvin Arrington, Atlanta, Ga., for defendant-appellant.

James E. Baker, U.S. Atty., Atlanta, Ga., Gerald E. McDowell, Chief, Public Integrity Section, Crim. Div., Reid H. Weingarten, Robert I. Richter, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

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Before JOHNSON and ANDERSON, Circuit Judges, and HUNTER [*], District Judge.

JOHNSON, Circuit Judge:

This is an appeal by William A. Borders from his conviction for his involvement in a conspiracy to solicit and accept a bribe in exchange for influencing the outcome of a case pending in the courtroom of his close friend, United States District Judge Alcee L. Hastings. 1 Both Judge Hastings and Borders were indicted for conspiracy and for corruptly impeding the administration of justice; Borders alone was also indicted for unlawfully travelling in interstate commerce with intent to commit bribery. 2 Borders' trial was severed from that of Hastings, 3 and venue was changed from the Southern District of Florida to the Northern District of Georgia. At trial, to support the conspiracy count against Borders the government introduced evidence as to the so-called flight of Judge Hastings on the day that Borders was arrested. Borders' defense consisted primarily of denying any conspiratorial involvement by Hastings and of introducing several character witnesses who testified in support of Borders. The jury found Borders guilty on all four counts, and he was sentenced to four concurrent five year prison terms and fined a total of $35,000. In this appeal, Borders cites as trial error the admission of the flight evidence, the jury instruction on flight, and the jury instruction on character evidence. We affirm.

I.

In December 1980, Frank Romano and Thomas Romano were convicted after a jury trial in Judge Hastings' courtroom of twenty-one counts of racketeering and related charges. On May 4, 1981, Judge Hastings ordered the forfeiture of $1.2 million worth of the Romanos' racketeering-related property under 18 U.S.C.A. Sec. 1963(a), the forfeiture provision of the Racketeer Influenced and Corrupt Organizations statute. 4 After receiving certain tips from an informant named William Dredge, who was a former client of Borders, the FBI in September 1981 began an investigation into the Romano proceedings.

In the presence of an FBI agent, Dredge called Borders on September 10, 1981, and, after telling Borders "My men are ready to deal," arranged to meet him at Miami International Airport on September 12 for the purpose of introducing him to Frank Romano. Borders later that day placed two calls

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to Judge Hastings' chambers in Miami. 5 The next day, September 11, FBI agents followed Judge Hastings from the United States Courthouse in Miami to the airport. Two short calls from pay telephones at the airport to Borders' office were charged to Hastings' home telephone. At 4:20 p.m., Borders' secretary took a message for Borders from Hastings that read "Flight further delayed, not leaving until 5:00." Hastings arrived that night at Washington National Airport at about 8 p.m. Borders, who apparently had been scheduled to leave National Airport for Miami at 7:30 p.m., changed his flight so as to depart at about 9:25 p.m.--thus providing Borders and Hastings with time to meet at National Airport.

For the September 12 meeting in Miami with Borders, the FBI selected retired FBI agent Paul Rico to pose as Frank Romano. Dredge, Rico, and Borders met at 8:40 a.m. at the Miami airport restaurant. Dredge introduced Rico to Borders, telling Borders "You're in good hands," and then left Rico and Borders alone. According to a tape of their conversation, 6 Borders asked Rico, "You know what the number is, right?" After Rico hesitated, Borders wrote "$150,000" on a piece of paper and then wrote "within ten days an order will be signed returning a substantial amount of property." Borders also told Rico that the "other"--apparently meaning reduced prison sentences for the Romanos--would come after Rico (Romano) withdrew a pending appeal and filed a motion in district court for mitigation of sentence. Rico hesitated, so Borders offered to have Dredge hold the money "until the first part is done," explaining, "[I] don't want you filing a motion and withdrawin' your appeal without knowin' somethin' gonna be done." Rico objected to using Dredge, preferring to deal directly with Borders, and suggested that he and Borders agree upon some procedure whereby Borders could prove his influence with Judge Hastings. Apparently Borders had previously suggested that Rico name a time and place for Hastings to eat dinner; Rico now repeated this suggestion. 7 Rico named the main dining room at the Fontainbleu Hotel in Miami Beach at 8 p.m. on September 16. Before the two departed, they agreed to meet again at the same location at 10 a.m. on September 19, so that Rico could "put something up front."

On September 16, FBI agents observed Judge Hastings arriving for dinner at the main dining room of the Fontainbleu Hotel at 7:45 p.m.--just as Rico had suggested.

Borders and Rico met for the second time as planned at the Miami airport on September 19. After Borders told Rico that the Romano property would be released within ten days, he instructed Rico on the procedure

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to be used for obtaining mitigation of sentence. 8 Rico then gave Borders an envelope containing $25,000 in $100 bills as "up front" money; they agreed that the remainder was to be paid at a later time. 9

There was no further contact between Rico and Borders until Rico called Borders at 3:10 p.m. on Friday, October 2, shortly after the government had installed court-authorized wiretaps on Borders' home and office telephones. Rico inquired as to the status of the forfeiture order; Borders was uncertain as to what had happened and suggested that Rico call him at home on Sunday, October 4. Borders attempted to call Hastings a little over an hour after talking to Rico, but Hastings' secretary indicated that he had left for the day.

Rico called Borders again at 9:30 Sunday morning. Borders told Rico that he "ha[dn't] been able to talk to anybody" and suggested that Rico call him at the office the next day. When Rico called Borders at 4:30 p.m. on Monday, October 5, Borders said that "the matter" had "been taken care of" and that Judge Hastings' order probably would be mailed out "today or first thing in the morning." Shortly afterwards, Judge Hastings called Borders and the following conversation occurred:

BORDERS: Yes, my brother.

HASTINGS: Yey, my man.

BORDERS: Um hum.

HASTINGS: I've drafted all those, ah, ah, letters, ah, for him ...

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BORDERS: Um hum.

HASTINGS: ... and everything's okay. The only thing I was concerned with was, did you hear if, ah, hear from him after we talked?

BORDERS: Yea.

HASTINGS: Oh. Okay.

BORDERS: Uh huh.

HASTINGS: Alright, then.

BORDERS: See, I had, I talked to him and he, he wrote some things down for me.

HASTINGS: I understand.

BORDERS: And then I was supposed to go back and get some more things.

HASTINGS: Alright. I understand. Well then, there's no great big problem at all. I'll, I'll see to it that, ah, I communicate with him. I'll send the stuff off to Columbia in the morning.

BORDERS: Okay.

HASTINGS: Okay.

BORDERS: Right.

HASTINGS: Bye bye.

BORDERS: Bye.

The next day, October 6, Judge Hastings issued an order which reversed in part the original $1.2 million forfeiture order, returning over $845,000 in forfeited property to the Romanos.

Between the issuance of the original forfeiture order and the October 6 order, the Fifth Circuit handed down United States v. Martino, 648 F.2d 367 (5th Cir., 1981), cert. denied, --- U.S. ----, 102 S.Ct. 2006, 72 L.Ed.2d 465 (1982), which reversed a forfeiture order similar to the one entered in the Romano case. 10 At the Romanos' sentencing hearing on July 8, 1981, Judge Hastings considered whether in light of Martino the May 4 order should be reversed. According to the transcript of the hearing and the testimony of the Justice Department attorney who prosecuted the Romanos, Hastings orally affirmed the May 4 order after hearing extensive argument as to the meaning of Martino. 11 About seven weeks after the hearing, the Fifth Circuit followed Martino in United States v. Peacock, 654 F.2d 339, 351 (5th Cir. August 27, 1981). Judge Hastings' law clerk told the judge about Peacock in early September, and Hastings responded by saying "give them [the Romanos] their money back." As of October 5, however--the day of the Borders-Hastings telephone conversation reproduced above--the clerk had not completed work on the new order. On that day the judge went to the law clerk and told him to "Do the order ... I want the order today." According to the clerk's testimony, such behavior was "unusual" for Judge Hastings and "not in the ordinary course of things." The order was drafted, typed, and mailed by 6:00 p.m. on October 6.

Rico called Borders at midday on October 7, inquiring again about the status of the order; Borders told him that "It went out yesterday morning." 12 Rico called again that night to tell him that he had received word of the order and was satisfied. They then discussed arrangements for the final payoff, which was to occur on October 9.

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Rico offered to travel to...

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