800 F.2d 1267 (4th Cir. 1986), 85-5114, United States v. Spitler

Docket Nº:85-5114, 85-5134.
Citation:800 F.2d 1267
Party Name:UNITED STATES of America, Appellee, v. Russell E. SPITLER, Appellant. UNITED STATES of America, Appellee, v. Duane CARPENTER, Appellant.
Case Date:September 12, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1267

800 F.2d 1267 (4th Cir. 1986)

UNITED STATES of America, Appellee,

v.

Russell E. SPITLER, Appellant.

UNITED STATES of America, Appellee,

v.

Duane CARPENTER, Appellant.

Nos. 85-5114, 85-5134.

United States Court of Appeals, Fourth Circuit

September 12, 1986

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[Copyrighted Material Omitted]

Argued Dec. 6, 1985.

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Andrew Jay Graham (Kramon & Graham, P.A., on brief), for appellant Duane Carpenter.

Gerard P. Martin (Ethan L. Bauman, on brief), for appellant Russell E. Spitler.

James Barr Moorhead, Asst. U.S. Atty. (Catherine C. Blake, U.S. Atty., on brief), for appellee.

Before WINTER, Chief Judge, RUSSELL, Circuit Judge, and SWYGERT, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation.

DONALD RUSSELL, Circuit Judge:

Russell E. Spitler and Duane Carpenter, defendant-appellants, appeal from judgments of conviction entered upon a guilty verdict of extortion and aiding and abetting extortion in violation of 18 U.S.C. Secs. 1951 and 2, 1 conspiracy to commit extortion in violation of 18 U.S.C. Sec. 1951, and mail fraud and aiding and abetting mail fraud in violation of 18 U.S.C. Secs. 1341 and 2. Seeking reversal of their convictions, defendants claim the district court erred in denying their motions for severance and for judgments of acquittal. Additionally, Spitler claims error in the district court's failure to give a requested jury instruction. Rejecting defendants' contentions, we affirm the judgments of the district court.

Background

Carpenter is the former Chief of the Metals Unit of the Maryland State Highway Administration, and Spitler is the Vice President of Transeastern Inspection, Inc. ("TEI"), which provided quality-assurance inspections for the Metals Unit on highway projects between 1979 and 1983. During this period, Carpenter demanded and received from TEI employees various items of value, including semi-automatic rifles, untraceable handguns, and jewelry. In many instances, Spitler authorized TEI employees to accede to Carpenter's demands and purchase the items with TEI funds. On some occasions, however, Spitler expressed hostility toward Carpenter's demands and advised TEI employees not to comply, or to delay complying, with the demands.

Spitler complied with Carpenter's demands both before and after July of 1980, when TEI as low bidder was awarded the contract to provide quality-assurance inspection services on steel tunnel sections for the Interstate Highway 95 Fort McHenry-Baltimore Harbor Tunnel extension, a ninety-percent federally funded project. Among Carpenter's responsibilities was to

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verify and approve for payment invoices submitted by TEI, which billed the State of Maryland on an hourly basis. TEI's contract placed no limit on the number of hours that it could bill for inspection services. As a result, Carpenter agreed with Spitler--who until sometime in 1981 received from TEI a three percent commission on TEI's Maryland billings--to approve inflated invoices reflecting time not actually worked by TEI employees. The invoices also reflected unnecessary overtime charges. TEI had mailed the fraudulent invoices to Carpenter, who approved them in each instance. On one occasion, Carpenter threatened to cut TEI's hours, but never carried out the threat.

After a federal audit of the tunnel project had started in 1982, Spitler and TEI employee Ronald Dunn feared the auditors would find records reflecting time that Dunn had charged to Maryland when he had been in Texas, so they burned Dunn's records in the fireplace of their condominium. Moreover, following the auditors' final report indicating excessive quality-assurance billings, Carpenter was relieved of his invoice approval authority and the amount of TEI billings significantly declined.

Carpenter was convicted of four counts of violating 18 U.S.C. Sec. 1951 for having extorted from TEI, through the wrongful use of the fear of economic injury and under color of official right, an Uzi semi-automatic weapon and accessories, an untraceable .357 Magnum revolver and ammunition, a lady's diamond ring, and a one-hundred-ounce silver bar. Spitler was convicted under 18 U.S.C. Secs. 2 and 1951 on three counts for having aided and abetted the extortion of the Uzi, the .357 Magnum, and the ring, all of which were extorted after defendants had commenced overbilling the State. Additionally, each defendant was convicted of one count of conspiracy to commit extortion from August 1979 through February 1983 in violation of section 1951 and of nine counts of mail fraud and aiding and abetting mail fraud in violation of 18 U.S.C. Secs. 1341 and 2.

Severance

Claiming mutually antagonistic and irreconcilable defenses, defendants initially assert error in the district court's denial of their motions for separate trials under Federal Rule of Criminal Procedure 14. At a hearing on the severance motions, Spitler's counsel indicated that Spitler definitely would testify at trial, and counsel proffered the following testimony of Spitler:

He will say ... that during the years that he was the general manager of TEI, the years that are covered by this indictment, that he never offered, he never approached Mr. Carpenter and offered him anything. That it was Mr. Carpenter who came to Mr. Spitler through Mr. Spitler's employees with his hand out saying give me this, give me that. And that Mr. Carpenter had a reputation for doing that in business. Mr. Spitler, this will be Mr. Spitler's testimony that knowing that reputation, Mr. Spitler approved the payments of certain things to Mr. Carpenter because he did [not] want the job to be interfered with.

Neither Carpenter nor his counsel appeared at the hearing on the severance motions. Carpenter relied on his written motion in which he, like Spitler, claimed prejudice from antagonistic, irreconcilable defenses. In his motion, however, Carpenter made no proffer other than an "assertion of innocence" to which he would feel coerced to testify if Spitler would take the stand.

At trial, defendants chose to call no witnesses and to present no evidence. Instead, defense counsel presented arguments of a largely consistent defense. In his opening statement, Carpenter's counsel claimed that the items furnished to Carpenter were gifts for services that Carpenter had performed for TEI. Likewise, in his opening remarks, Spitler's counsel indicated that although Carpenter had asked for the items, Spitler agreed to provide the items because "Carpenter was owed something for what he did" and because Spitler wanted no trouble on the job. In closing argument, moreover, counsel for Spitler declared that the items provided to Carpenter

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were compensation for Carpenter's consulting services to TEI on non-Maryland jobs and that "the evidence doesn't show extortion. The evidence shows no extortion at all...." Further, cross-examination by Spitler's counsel promoted the defense that Carpenter was entitled to the articles for consulting work and that such items were treated openly. Through cross-examination and argument, Spitler also sought to minimize Carpenter's involvement in the tunnel project in an apparent effort to show that Carpenter would have been more actively involved with the project had the defendants entered a scheme to defraud.

Despite the consistency of their arguments, both defense counsel reiterated their severance motions by seeking a mistrial based on allegedly antagonistic remarks in the opening statements. Spitler's lawyer also made a similar motion the second day of trial, claiming prejudice from a government witness' direct testimony that Carpenter had sought untraceable firearms. The district court denied each request for severance and mistrial.

On appeal, defendants' essentially raise three arguments in support of their claim that the district court erroneously denied severance. First, Spitler and Carpenter contend they made a sufficient pretrial showing of irreconcilable defenses because "[t]he potential for prejudice was clear prior to trial when Defendants initially moved for severance." Defendants also contend that severance was required because in the opening statement and closing argument, Spitler's counsel made some reference to Spitler having been an unwilling victim of extortion. Such occasional assertions of an extortion, contend defendants, inculpated Carpenter and reflected mutually antagonistic, irreconcilable defenses. Lastly, defendants implicitly claim that the potential for undue prejudice from irreconcilable defenses precluded them from presenting evidence and, as a result, deprived them a fair trial. As discussed below, we consider defendants' arguments unmeritorious.

Primarily due to "the need for efficiency in judicial administration," United States v. Shuford, 454 F.2d 772, 776 (4th Cir.1971), "[g]enerally, where the indictment charges a conspiracy, or a crime having a principal and aider-abettors, the rule is that persons jointly indicted should be tried together." United States v. Kahn, 381 F.2d 824, 838 (7th Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct. 592, 19 L.Ed.2d 661 (1967). See also Shuford, supra; United States v. Parodi, 703 F.2d 768, 779 (4th Cir.1983); United States v. Lurtz, 666 F.2d 69, 80 (4th Cir.1981), cert. denied, 459 U.S. 843, 103 S.Ct. 95, 74 L.Ed.2d 87 (1982). Nevertheless, "[i]f it appears that a defendant ... is prejudiced by a joinder of ... defendants in an indictment or ... for trial together, the [district] court may ... grant a severance of defendants or provide whatever relief justice requires." Fed.R.Crim.P. 14. "[T]he mere presence of hostility among defendants," however, "or the desire of one to exculpate himself by inculpating another [are] insufficient grounds to require separate trials," United...

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