U.S. v. Robinson

• Citation: 763 F.2d 778
• Decision Date: 31 May 1985
• Docket Number: 84-5141 and 84-5158,Nos. 84-5140,s. 84-5140
• Parties: 17 Fed. R. Evid. Serv. 1434 UNITED STATES of America, Plaintiff-Appellee, v. Clarence Samuel ROBINSON (84-5140), Charles T. Cornett (84-5141), James Harold Coldiron (84-5158), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 778

763 F.2d 778

17 Fed. R. Evid. Serv. 1434

UNITED STATES of America, Plaintiff-Appellee, v. Clarence Samuel ROBINSON (84-5140), Charles T. Cornett (84-5141), James Harold Coldiron (84-5158) Defendants-Appellants.

Nos. 84-5140, 84-5141 and 84-5158.

United States Court of Appeals Sixth Circuit.

Argued Jan. 8, 1985.

Decided May 31, 1985.

Otis Doan, Jr. (argued), Doan & Melvin, Harlan, Ky., for defendant-appellant in No. 84-5140.

Louis DeFalaise, U.S. Atty., Lexington, Ky., R. Michael Murphy (argued), for plaintiff-appellee.

William A. Young (argued), Greenebaum, Young, Treitz & Maggiolo, Frankfort, Ky., for defendant-appellant in No. 84-5141.

Arthur L. Brooks (argued), Lexington, Ky., for defendant-appellant in No. 84-5158.

Before LIVELY, Chief Judge, ENGEL, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Defendants-appellants, Charles Cornett, James Coldiron, and Clarence Robinson, appeal from a jury verdict finding them guilty of violating Sections 1962(c) and 1962(d) of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961-1968 (1982). On appeal, appellants individually and collectively raise numerous assignments of error. After careful consideration of each contention, we affirm.

The events relevant to this appeal occurred between July and December 1978 in the "dry" county of Harlan, Kentucky and the "wet" city of Cumberland. During this time, Charles Cornett was a state district court judge in Harlan, James Coldiron was an insurance salesman in Harlan, and Clarence Robinson was an employee of Ann's Liquors, a licensed alcoholic beverage retailer in Cumberland. The government alleged that the defendants entered into a conspiracy to sell contraband liquor ¹ confiscated in Judge Cornett's jurisdiction to Ann's Liquors and share the proceeds. In order to effect this scheme, the defendants enlisted the aid of James Saylor, the Harlan County agent of the Kentucky Alcohol Beverage Control Department (ABC).

The conspiracy was set in motion by Judge Cornett turning the confiscated liquor over to Agent Saylor; Agent Saylor then transported surreptitiously the contraband to Ann's Liquors and sold the alcohol to Clarence Robinson at a reduced rate; Ann's Liquors subsequently marketed the liquor to the general public. In order to prevent the scheme from being uncovered, Judge Cornett made the court records reflect that the contraband had been destroyed. Although the defendants knew that Agent Saylor was a member of the ABC, they believed that he was using his position to further the conspiracy. Agent Saylor, however, was cooperating with the Federal Bureau of Investigation and recording his telephone and personal conversations with the defendants. According to the government, these taped conversations establish that four separate sales of contraband alcohol were made to Ann's Liquors and that Agent Saylor received payments of $1,000, $630.00, and $300.00 for his participation in the scheme. The defendants were subsequently indicted for engaging in a pattern of racketeering activity in violation of 18 U.S.C. Sec. 1962(c) (1982) and conspiring to engage in a pattern of racketeering activity in contravention of 18 U.S.C. Sec. 1962(d) (1982).

The first trial of the defendants resulted in a hung jury. Upon retrial, the defendants were convicted on all counts; however, because transcripts of tape recordings made by Agent Saylor were admitted improperly into evidence, this Court reversed the convictions. United States v. Robinson, 707 F.2d 872 (6th Cir.1983). At a third trial, the defendants were again convicted on all counts. This appeal ensued. ²

Section 1962(c) prohibits any enterprise which affects or is engaged in interstate commerce from conducting its affairs through a "pattern of racketeering activity." 18 U.S.C. Sec. 1962(c) (1982). In order to establish a "pattern of racketeering activity" two acts of racketeering activity, which is defined as any act chargeable under state law and punishable by more than one year in jail, 18 U.S.C. Sec. 1961(1) (1982), must be proven, 18 U.S.C. Sec. 1961(5) (1982). Moreover, conspiring to conduct an enterprise's affairs through a pattern of racketeering activity is unlawful. 18 U.S.C. Sec. 1962(d) (1982). In this case, the government alleged a pattern of racketeering based upon appellants' payments to Agent Saylor; each payment constituted bribery of a public servant under Kentucky law. ³

I. Effect on Interstate Commerce

Initially, appellant Robinson contends that the government failed to establish that the defendants' conduct affected interstate commerce. ⁴ 18 U.S.C. Sec. 1962(c) (1982) (enterprise's activities must "affect, interstate or foreign commerce"). The law is well settled that for purposes of Sec. 1962(c) the criminal enterprise need only have a minimal impact upon interstate commerce. E.g., Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1289 (7th Cir.1983); United States v. Allen, 656 F.2d 964, 964 (4th Cir.1981) (per curiam); United States v. Rone, 598 F.2d 564, 573 (9th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). In the present case, the parties stipulated that the alcohol sold by the appellants to Ann's Liquors was manufactured out of state. In our view, this is a sufficient impact upon interstate commerce for purposes of Section 1962(c). Cf. United States v. Richardson, 596 F.2d 157, 160-61 (6th Cir.1979) (manufacturing of alcohol outside of state sufficient nexus for purposes of the Hobbs Act). Accordingly, we reject Robinson's contention that the conspiracy in question did not affect interstate commerce.

II. Admission of the Tape Recordings

Appellants Coldiron and Robinson challenge the district court's admission into evidence of approximately twenty-five allegedly unintelligible tape recordings of conversations between Agent Saylor and the defendants. Tape recordings are generally admissible unless the incomprehensible portions of the tapes are so substantial as to render the recordings as a whole untrustworthy. E.g., United States v. Terry, 729 F.2d 1063, 1068 (6th Cir.1984); United States v. Slade, 627 F.2d 293, 301 (D.C.Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980); United States v. Cooper, 365 F.2d 246, 249-50 (6th Cir.1966), cert. denied, 385 U.S. 1030, 87 S.Ct. 760, 17 L.Ed.2d 677 (1967). Further, the decision to admit tape recordings into evidence rests with the sound discretion of the district court judge. E.g., United States v. Reed, 647 F.2d 678, 688 (6th Cir.), cert. denied, 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981); United States v. Carter, 613 F.2d 256, 261 (10th Cir.1979), cert. denied, 449 U.S. 822, 101 S.Ct. 81, 66 L.Ed.2d 24 (1980); United States v. Enright, 579 F.2d 980, 988 (6th Cir.1978). After reviewing the challenged tapes, we conclude that their admission was proper. ⁵

The bulk of the tapes admitted into evidence contained phone conversations between Agent Saylor and the defendants. These conversations were clear and intelligible. Several of the tapes, however, which were made by Saylor while in the courthouse in which Judge Cornett's chambers was located and Coldiron's office, contained incomprehensible portions. Background noise will often render portions of tape recordings unintelligible in such settings, but these segments alone do not require that all the recordings be excluded from evidence. Rather, the recordings must be considered as a whole to determine their their trustworthiness. In this case, despite the incomprehensible portions on some of the tapes, taken as a whole we believe that the tape recordings were sufficiently comprehensible to allow their admission into evidence. The district court, therefore, did not abuse its discretion in permitting the jury to hear the tape recordings.

III. Admissibility of Entrapment Evidence

At trial, appellant Coldiron attempted to introduce testimony of United States Congressman Carrol Hubbard pertaining to his entrapment defense. Essentially, Congressman Hubbard's proffered testimony would have dealt with attempts by agents of the Federal Bureau of Investigation, in March of 1979, to persuade Hubbard to enlist Coldiron in an investigation of the then Kentucky Governor and Coldiron's old friend, Julian Carroll. According to Coldiron, this testimony was relevant to show a motive for the FBI to entrap him in the present case; the government needed the pending federal charges in this case as leverage to induce Coldiron into aiding the government in their investigation of Governor Carroll. ⁶

We do not believe the district court abused its discretion, see, e.g., Texas Eastern Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 566 (10th Cir.1978); United States v. Coast of Maine Lobster Co., Inc., 557 F.2d 905, 908 (1st Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 136 (1977), in concluding that Congressman Hubbard's testimony was irrelevant. The conversations between Congressman Hubbard and the FBI agents took place approximately seven months after the conspiracy at issue had been formed. Thus, even assuming that the FBI in March of 1979 wanted to obtain Coldiron's cooperation, this testimony is not in any way probative of the motive of the FBI agents in setting up this undercover operation in July of 1978. See Fed.R.Evid. 401. Moreover, no evidence was introduced establishing that any FBI agent participated in both setting up the undercover operation in question in July 1978 and arranging the investigation of Governor Carroll. ⁷ In addition, the principal issue in an entrapment defense is whether the defendant was predisposed to commit the offense. E.g., United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 373, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 442, 53...