U.S. v. James, 82-2607

Decision Date29 February 1984
Docket NumberNo. 82-2607,82-2607
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marvin JAMES, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Gene Stipe, McAlester, Okl. (Anthony M. Laizure, McAlester, Okl., with him on brief) of Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks, McAlester, Okl., for defendant-appellant.

Gary L. Richardson, U.S. Atty., Muskogee, Okl. (Donn F. Baker, Asst. U.S. Atty., Muskogee, Okl., with him on brief), for plaintiff-appellee.

Before McWILLIAMS and LOGAN, Circuit Judges, and COOK, District Judge. *

LOGAN, Circuit Judge.

Defendant Marvin James, a former county commissioner in McIntosh County, Oklahoma, appeals his conviction on twenty-three counts of mail fraud, in violation of 18 U.S.C. Sec. 1341, and three counts of extortion, in violation of 18 U.S.C. Sec. 1951. Defendant asserts six grounds of error: (1) the trial court's voir dire of prospective jurors was inadequate in light of the massive pretrial publicity; (2) the trial court should have questioned each juror individually concerning exposure to pretrial publicity; (3) the mailing of county warrants to vendors did not constitute mail fraud; (4) insufficient evidence existed to show that defendant unlawfully interfered with interstate commerce; (5) the trial court gave an improper instruction on the government's burden of proving a nexus with interstate commerce; and (6) the court should have declared a mistrial because of prosecutorial misconduct. We affirm.

James' indictment resulted from a three-year investigation of corrupt practices of Oklahoma county commissioners. James was charged with devising a scheme to defraud the citizens of McIntosh County by depriving them of their right to have county business conducted free from corruption and undue influence. Specifically, James was convicted for receiving kickbacks in return for placing orders for road and bridge building materials and supplies with certain vendors. All of the issues raised on appeal except for the issue of prosecutorial misconduct have been considered by this Court in other cases involving Oklahoma county commissioners. Since there are no significant factual distinctions between those cases and this one, our disposition of all issues except that of prosecutorial misconduct is controlled by those cases.

I

James argues that the trial court conducted an inadequate voir dire because the vast majority of jurors had read or heard about the ongoing investigation of county commissioners. He asserts that the voir dire was not sufficiently broad to permit the trial court to assess the effect of this publicity on the jurors' impartiality and that each juror should have been questioned individually out of the presence of the other jurors. Virtually identical contentions were made and rejected in United States v. Whitt, 718 F.2d 1494 (10th Cir.1983), and United States v. Primrose, 718 F.2d 1484 (10th Cir.1983). Based on our review of the record, which indicates that none of the jurors were exposed to pretrial publicity specifically mentioning James' name, and on the authorities and analysis set out in Whitt, we conclude that the voir dire was adequate.

II

James asserts that the government failed to show the mailings in this case were in furtherance of a scheme to defraud. He argues that because the bribe payments were before or after the purchases, he was not scheming to defraud at the time of the payments. He also asserts that because the county was compelled to mail warrants to pay for materials and supplies the mailings fall outside the scope of the mail fraud statute under Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960). We have already considered and rejected virtually identical arguments in similar factual contexts in Primrose, 718 F.2d at 1489-91, and United States v. Gann, 718 F.2d 1502, 1504 (10th Cir.1983).

James contends that the evidence on the extortion counts failed to establish the effect on commerce required under the Hobbs Act, and that the trial court committed prejudicial error by instructing the jury that if "any supplies, materials, or equipment [were] purchased or obtained" from outside Oklahoma and brought into the state as a result of an extortionate transaction, then the government would have carried its burden of proof on nexus with interstate commerce. We dealt with similar contentions in United States v. Boston, 718 F.2d 1511 (10th Cir.1983), and Whitt, 718 F.2d at 1500-01. On the basis of the authorities and analyses set out in those cases, we conclude that James' arguments are meritless.

III

Finally, James argues that the trial court erred in not granting a mistrial for prosecutorial misconduct. On cross-examination of McIntosh County Clerk Ian Warren defense counsel asked if he knew of defendant's reputation in the community. Warren responded that James' reputation was excellent. On redirect examination the prosecutor asked, "Do you think if the people of McIntosh County as a whole knew if the evidence was, we'll say, or if it was determined that Marvin James has been taking kickbacks ... that his reputation would be one for honesty and integrity in the community"? In United States v. Polsinelli, 649 F.2d 793, 795 (10th Cir.1981),...

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    ...rebutted that notion. Under these circumstances, we do not think the Government's questioning was prejudicial. See United States v. James, 728 F.2d 465, 467-68 (10th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 106, 83 L.Ed.2d 50 (1984); Marks v. United States, 260 F.2d 377, 383 (10th Cir.......
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