910 F.2d 790 (11th Cir. 1990), 89-8631, United States v. Evans

Docket Nº:89-8631.
Citation:910 F.2d 790
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John H. EVANS, Jr., Defendant-Appellant.
Case Date:September 06, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 790

910 F.2d 790 (11th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

John H. EVANS, Jr., Defendant-Appellant.

No. 89-8631.

United States Court of Appeals, Eleventh Circuit

September 6, 1990

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C. Michael Abbott, Atlanta, Ga., for defendant-appellant.

Robert L. Barr, Jr., U.S. Atty., William Gaffney, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before KRAVITCH and COX, Circuit Judges, and DYER, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

John H. Evans, Jr. appeals his conviction on one count of attempted extortion under color of official right in violation of the Hobbs Act, 18 U.S.C. Sec. 1951, and one count of subscribing to a materially false federal income tax return for 1986 in violation of 26 U.S.C. Sec. 7206(1). We affirm his convictions on both counts.

BACKGROUND

In early 1985, Clifford Cormany, Jr. ("Cormany"), a special agent with the Federal Bureau of Investigation ("F.B.I.") was assigned to Atlanta to assist in conducting an undercover investigation, to be known as "Operation Vespine," into allegations of public corruption in the Atlanta area, particularly in the area of rezoning of properties. Using the identity of "Steve Hawkins," Cormany represented himself as a land developer of the company WDH, who had recently moved to the Atlanta area. Cormany told other people that he represented a group of investors that was considering developing various land projects in DeKalb County.

In March of 1985, Albert E. Johnson, who was a subject of the investigation, 1 arranged a meeting between Cormany and John H. Evans, a member of the Board of Commissioners in DeKalb County. During this meeting, Johnson told Evans that Cormany's investment group was looking for assistance with matters related to rezoning and variances.

Subsequently, between August, 1985, and October, 1986, a series of meetings and telephone conversations between Evans and Cormany ensued. Almost all of these meetings and conversations were videotaped or audio taped, and they formed a substantial part of the evidence presented by the government at trial.

During the first of these meetings, in August of 1985, Evans was informed by Johnson and Cormany that Cormany wanted to let his investment group know that it had a "leg up" on other developers in DeKalb County. He aimed to achieve this "leg up" by letting the developers know that WDH was associated with the bodies that governed such things as zoning requests. Evans agreed to help set up meetings for Cormany and Johnson with other commissioners.

Evans was contacted nine months later, in May of 1986, at which time Johnson and Cormany informed him that they wanted to get an area zoned for the highest density possible and that they were willing to do whatever was needed in order to get the zoning passed. There was also discussion of Evans's campaign for reelection which was just getting off the ground. In response to a query from Johnson about what size contribution would be considered meaningful, Evans replied that at a recent fundraising event, contributors were encouraged to give a thousand dollars apiece. Johnson then asked whether Evans needed any "expense money." Evans stated that

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he had to order a voter registration list and mailing labels in order to do a precinct mailing. He estimated that it would cost him about $260 and Cormany wrote out a check to Evans for a $300 contribution. Evans used this money to buy the list and sent a thank-you note to Cormany.

In July, 1986, Cormany and Johnson met Evans for lunch and informed him that they had a particular tract of land in mind that they wanted to get rezoned to a higher density. They told Evans that expense monies would be available for Evans if needed. Evans recommended that they meet with members of the DeKalb County Planning Department so they could get their rezoning application filed as soon as possible.

On the morning of July 23, 1986, Evans called Cormany at his undercover apartment. The parties disagree as to whether Evans initiated this call. At trial, Evans testified that he was returning a call that had been placed by Cormany. Cormany testified that the call he received was unsolicited. This call was not recorded. Cormany testified that he did not record the call because he was not expecting a call at his home and had not set up any recording equipment. Cormany further testified that at the end of the conversation, which concerned the filing of the zoning petition, Evans replied that he was "running hard and pulling teeth." Cormany testified that he thought that Evans's references to his campaign were an attempt to discuss money opportunities with him in connection with his rezoning efforts. Later that day, Cormany and Evans spoke again in order to arrange a meeting for the next day. According to Evans, Cormany also told him to bring an indication of his campaign needs. Cormany denied that he asked Evans to prepare any list. This conversation also was not recorded.

Cormany and Evans met on July 24, at which time Cormany informed Evans that there was a "generous budget for anything we do." Evans then produced a document which he referred to as the "draft constitution of the United States," which contained his campaign budget from June 29 to August 12, the date of the primary. The document apparently showed his outstanding campaign debts as well as an estimate of his anticipated campaign expenses throughout the primary. Evans stated that of his $14,180 budget, he had received $6,295, leaving a shortfall of $7,885. At this point the following conversation ensued:

Cormany: Can I, can I talk frankly with you ...

Evans: Yeah.

. . . . .

Cormany: And, and this is between you and I. I need, I desperately need, your help and your support on this project. You, I'm in one business, you're in another.

Evans: Yeah, yeah you got me.

Cormany: You're, you're the influence you have over there, and the assistance you have over there, I can probably cover that for you.

Evans: Well, let me tell you. I, it's it's cause, see you don't know how I operate. What I'm, what I'm telling you is that, this is what the shortfall is and then you can decide whatever part you want to handle of that.

Cormany: You're talking about seven eight eighty-five.

Evans: Right.

Cormany: That's the balance of what the ...

Evans: Of what the budget was from June 29th through August 12.

Cormany: But what I'm asking you John, I mean, is if I pick up the entire amount, I mean, does that, would that satis-- would that be a reasonable relationship, a reasonable

. . . . .

Evans: Oh, I'll, let me make sure, and I understand both of us are groping ...

Cormany: Yeah.

Evans: ... for what we need to say to each other.

. . . . .

Cormany: All I want ... let me, let me kinda ..

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Evans: I'm gonna work. Let me tell you I'm gonna work, if you didn't give me but three, on this, I've promised to help you. I'm gonna work to do that. You understand what I mean.

Cormany: Yeah.

Evans: If you gave me six, I'll do exactly what I said I was gonna do for you. If you gave me one, I'll do exactly what I said I was gonna do for you. I wanna' make sure you're clear on that part. So it doesn't really matter. If I promised to help, that's what I'm gonna do.

Cormany: I understand.

Evans: You see, what I'm doing is giving you is a fair assessment of what my needs are to be re-elected on August 12.

Cormany: Okay.

After some intermediate conversation, the interchange continued as follows:

Cormany: You need cash?

Evans: Yeah ...

Cormany: Check?

Evans: I think we better do it that way.

Cormany: Cash?

Evans: Yeah, I think so in this case.

Cormany: Okay.

Evans: I think so, so there won't be any, any, tinges, or anything.

Cormany: Okay.

Evans: Or, we can do this.

Cormany: You, you, tell me how you prefer it done?

Evans: I mean, let me, let me tell ya'.

Cormany: I can write the check ...

Evans: I know.

Cormany: Or I can give you, I can give you ...

Evans: Okay, I'll tell you now, we don't have to do that. What you do, is make me out one, ahh, for a thousand.

Cormany: Make you out a check for a thousand?

Evans: And, and that means we gonna record it and report it and then the rest would be cash.

Cormany: The rest will be cash?

Evans: Yeah.

Later in the meeting, the conversation continued as follows:

Cormany: But, I hope you understand that, ahh, just because, you're in an election year that's not the only reason that, I mean we would have a budget either way.

Evans: I understand. Oh, I understand that.

Cormany: And you and I would have a budget either way.

Evans: Either way, yep. Oh, I understand that. I understand.

Later that day, Cormany tried to file the application for rezoning of the property, but the application was rejected because the property had been rezoned less than two years before. Evans and Cormany met on July 25, at which time the conversation centered around whether or not this two-year requirement could be waived. At this meeting, Cormany gave Evans $7,000 in cash, which Evans placed in an envelope, and a check for $1,000 payable to the "John Evans Campaign." Evans locked the $7,000 in cash in a drawer in a file cabinet in his campaign office. Evans did not at that time record the $7,000 in cash given to him by Cormany on his books nor on the required state disclosure form. Evans...

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