U.S. v. Benton
| Decision Date | 22 July 1988 |
| Docket Number | 87-5361,Nos. 87-5355,s. 87-5355 |
| Citation | 852 F.2d 1456 |
| Parties | 26 Fed. R. Evid. Serv. 502 UNITED STATES of America, Plaintiff-Appellee, v. Roger BENTON (87-5355) and, Marion D. Campbell (87-5361), Defendants- Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Arthur Brooks (argued), Lexington, Ky., for defendant-appellant in No. 87-5355.
James Arehart (argued), Asst. U.S. Atty., Lexington, Ky., for plaintiff-appellee in No. 87-5355.
William E. Johnson (argued), J. Gurthie True, Frankfort, Ky., for defendant-appellant in No. 87-5361.
Louis DeFalaise, U.S. Atty., James E. Arehart (argued), Lexington, Ky., for plaintiff-appellee in No. 87-5361.
Before GUY and BOGGS, Circuit Judges, and PECK, Senior Circuit Judge.
Defendants-appellants Roger Benton (Benton) and Marion D. Campbell (Campbell) were indicted in federal district court, and tried jointly before a jury, on one count of conspiracy to commit extortion, and several substantive counts of extortion under the Hobbs Act, 18 U.S.C. Sec. 1951, 1 and one count of conspiracy to distribute cocaine and marijuana under 21 U.S.C. Sec. 846. 2 Campbell was acquitted of the Hobbs Act violations, but the jury was unable to reach a verdict on the conspiracy to distribute drugs count under 21 U.S.C. Sec. 846. Benton, however, was found guilty on all counts.
The district court denied Campbell's motion to dismiss the superseding indictment returned by the government, after the district court declared a mistrial because of the hung jury. Campbell essentially argues that the charge of conspiracy to commit extortion under the Hobbs Act, 18 U.S.C. Sec. 1951, on which he was acquitted, is the "same offense" for double jeopardy purposes as the charge of conspiracy to distribute cocaine and marijuana under 21 U.S.C. Sec. 846. Campbell also argues that collateral estoppel, as part of the Fifth Amendment's guarantee against double jeopardy, prevents the government from constitutionally retrying him on the conspiracy to distribute cocaine count in the superseding indictment. We affirm the district court order, permitting the government to retry Campbell on the conspiracy to distribute cocaine count under 21 U.S.C. Sec. 846 in the superseding indictment.
Benton, on the other hand, appeals his convictions on all counts of extortion under the Hobbs Act, 18 U.S.C. Sec. 1951, and conspiracy to distribute cocaine and marijuana under 21 U.S.C. Sec. 846. Benton essentially argues that the district court erred in admitting evidence of certain "prior bad acts" pursuant to Fed.R.Evid. 404(b) and that the district court made other major evidentiary errors. We find that the district court committed no reversible error, and affirm Benton's conviction on all counts.
On March 12, 1986, an indictment was returned in district court. Count 1 charged Campbell and Benton with conspiring, with co-defendants Gene Allen, Titus Frederick and Steve Allen, during the period of January 1, 1985 through February 11, 1986, to obstruct, delay, and affect commerce by extortion in obtaining money and cocaine from an undercover FBI agent, McNeal, under color of official right. Count 1 recited that at the time of this conspiracy Campbell was Captain of the Kentucky State Police, and Benton was the Sheriff of Morgan County, Kentucky. Count 1 generally charged that Campbell received payoffs from undercover agent McNeal through Titus Frederick and Gene Allen. Allen was then Morgan County Judge. Frederick knew each co-defendant. In return for the payoffs, Campbell and Benton allegedly protected a cocaine distribution scheme facilitated by agent McNeal in Morgan County, Kentucky and in other states, and promised to inform McNeal of any state or federal investigations.
Counts 5, 8, and 15 charged Campbell and other co-defendants with various substantive counts of extortion under 18 U.S.C. Sec. 1951. Counts 6, 9, and 12 charged Benton with various substantive counts of extortion under color of official right.
Count 16 charged that, during the period January 1, 1985 through February 11, 1986, Campbell, Benton, Frederick, Allen and his son Steve Allen, attempted and conspired to distribute and possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. Sec. 846.
Testimony at the trial indicated that the defendants Allen, Benton, Campbell, and Frederick were interested in establishing a drug operation in Morgan County, Kentucky. They would import drugs from Florida into Morgan County and extort money from individuals selling drugs in return for "protection" and the promise that law enforcement officials would not interfere with their drug sales.
Defendant Allen testified at trial that by late 1983, Campbell, a long time friend, had come to him and indicated that drug dealers were making a good deal of money, and that he desired to make some money before he retired. This aspect of Allen's testimony was corroborated by the testimony of Lester H. Burns, Jr. Allen testified that the plan was to obtain drugs through a crooked Deputy Sheriff in Okeechobee, Florida, and fly the drugs into Morgan County for sale and "split [the proceeds] four ways between [himself], and Roger Benton, Marion Campbell and Titus Frederick." Allen testified that every time he met with Campbell they discussed the drug business. Allen also testified that they approached Burns about financing some of the drug operations, but he refused and they turned their attention to agent McNeal who was posing as a drug dealer. According to Allen, McNeal agreed to supply the cocaine to him, and had also agreed to pay protection money to Allen, Benton and Campbell.
Defendant Frederick testified that in the Fall of 1984, Allen and Campbell came to his house and indicated that "they wanted to get into the dope business and wanted me to help them find a supplier for it." Consistent with Allen's testimony, Frederick testified that Allen and Campbell discussed the possibility of involving attorney Lester Burns to finance a cocaine deal because they understood that he had the money to do it. He further testified that Allen and Campbell wanted to become involved in the drug business because they thought that Frederick knew the people who could get them started. Frederick testified that he, Allen, and Campbell went to Florida to ask Burns to finance their dope business, but Campbell and Burns fell into fundamental disagreement. According to Frederick's testimony, Frederick and Allen discussed supplying cocaine to Morgan County with agent McNeal. Frederick testified that he arranged a meeting of Benton, Allen, himself and McNeal. Agent McNeal testified that Captain Campbell was present at the premises of Lester Burns where the discussion about cocaine took place.
At trial, McNeal testified that on October 30, 1985, the defendants made plans for flying cocaine into Morgan County from somewhere in Florida. He testified that Frederick and Allen had agreed that McNeal should pay $5,000 a month to Allen, Benton, Campbell, and Frederick for protection, and to keep from getting arrested. The next day he paid Frederick $2,500 for protection from Campbell, and Frederick told McNeal that he would give that money to Campbell. McNeal testified that on November 7, 1985 he explained everything to Benton: that he wanted to fly cocaine into Morgan County, and that he wanted Benton's cooperation and protection. Both Benton and Frederick assured McNeal that he would be notified if he were in danger of being arrested.
McNeal testified that on November 20, 1985 he flew two kilos of cocaine into Morgan County and distributed it at defendant Allen's house to purported buyers who were FBI undercover agents from Indiana. McNeal testified that on December 4, 1985, he went to Frederick's home in Morgan County, and paid Allen $2,500 for protection, Frederick $2,500, and paid $2,500 to be given to Campbell. Before leaving Frederick's home, McNeal telephoned Benton, and agreed to meet on a highway at which time McNeal paid him $2,500 for protection to fly drugs in and out of a Morgan County airport. McNeal testified that at that time he told Benton that he had flown in another load of cocaine, and that everything went well.
On January 9 and 10, 1986, McNeal was in Okeechobee, Florida, where he paid Allen $5,000 for protection, and $5,000 to be given to Campbell. On January 16, 1986, McNeal paid Benton $5,000 for protection. Benton had gone to Florida specifically for the purpose of meeting McNeal and getting paid.
Benton testified that he was conducting his own investigation, and that was the reason for his taking the money from agent McNeal. Campbell made similar statements. However, Sergeant Evans of the Kentucky State Police testified that he worked closely with Campbell, and that Campbell never told him about using Allen or Frederick in the "investigation." Evans also testified that Campbell asked him to testify to having had conversations with Campbell which never happened. Charles Perry, Chief of the West Liberty Police Department, testified that he never was made aware of any investigation by Benton about drugs or payoffs in Morgan County. Robert Hutchinson, the Commonwealth Attorney of Morgan County, testified that Benton never had any conversation with him about an investigation Benton was conducting.
On February 5, 1987, the jury returned verdicts of not guilty as to Campbell on Counts 1, 5, 8, and 15 (all charging extortion). As to Count 16 (charging conspiracy to distribute drugs), the jury was unable to reach a verdict. The district court thus declared a mistrial as to Count 16. The jury found Benton guilty on all counts of conspiracy to commit extortion, substantive counts of extortion, and conspiracy to distribute drugs.
On February 17, 1987, the government moved to set a new trial date for Campbell on Count 16. Campbell moved to dismiss Count 16 on double jeopardy grounds.
On March 4,...
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