U.S. v. Rioux, s. 1717

Citation97 F.3d 648
Decision Date02 October 1996
Docket NumberD,1913,Nos. 1717,s. 1717
Parties45 Fed. R. Evid. Serv. 998 UNITED STATES of America, Appellee/Cross-Appellant, v. Alfred J. RIOUX, Appellant/Cross-Appellee. ockets 95-1542(L), 95-1638(XAP).
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

John C. Keeney, Acting Assistant Attorney General, Criminal Investigation Division, Department of Justice, Washington, DC (Joseph C. Hutchison, Assistant United States Attorney, District of Connecticut, New Haven, CT, of counsel), John A. Danaher, III, Executive Assistant United States Attorney, Hartford, CT, for Appellee/Cross Appellant.

James A. Wade, Robinson & Cole, Hartford, CT (Craig A. Raabe, Robinson & Cole, Hartford, CT, of counsel), for Appellant/Cross-Appellee.

Before: KEARSE, MAHONEY, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

In 1986, the people of Hartford County, Connecticut elected Alfred J. Rioux High Sheriff. Rioux was subsequently accused of extorting funds from the Special Deputy Sheriffs and Deputy Sheriffs whom he appointed in the following years. After a four-week trial in the United States District Court for the District of Connecticut (Ellen Bree Burns, Judge ), a jury convicted Rioux of a fraudulent scheme to commit extortion, in violation of 18 U.S.C. § 1341 (mail fraud), and a violation of the Travel Act, 18 U.S.C. § 1952, arising from the same fraudulent scheme.

At sentencing, the district court reduced Rioux's minimum base offense level from twenty to ten because of his physical condition, charitable fundraising efforts, and civic accomplishments. The district court then sentenced him to three years' probation, six months of home confinement, 500 hours of community service, and a $100 special assessment. Rioux appeals his conviction on multiple grounds, and the government cross-appeals the district court's sentencing decision. We affirm the district court's decision in all respects.

BACKGROUND
I. Introduction

Elected High Sheriff in 1986, Rioux remained in that position through 1992. During this period he appointed approximately 65 Deputy Sheriffs, who conducted evictions and served legal process. Rioux also appointed 250 Special Deputy Sheriffs, who were responsible for courthouse security and the custody and transportation of state prisoners.

Rioux was also an ex officio member of the Hartford County Association of Deputy and Special Deputy Sheriffs ("the Association"), and he was a member of its executive committee. The Association is a private organization, akin to a Fraternal Order of Police. Rioux never paid dues to the Association; but, Special Deputies and Deputies had to pay their dues every May.

In May, 1992, the Deputies and Special Deputies began to unionize. During this period, the media exposed Rioux's corrupt practices, the upshot being an indictment stating, in part, that:

Rioux used his official position ... directly and indirectly to threaten to suspend and terminate any working Deputy or Special Deputy Sheriff:

a. who failed to pay annual dues to the Association;

b. who failed to purchase one or more tickets to Association fundraising events; and/or

c. who failed to purchase one or more tickets to political fundraising events endorsed by Rioux, including events sponsored by the "Committee to Re-elect Alfred J. Rioux."

II. Trial

During the trial, the government presented evidence that Rioux reviewed each Deputy and Special Deputy every Spring to determine whether he should be reappointed. As a condition of reappointment, Rioux required the Deputies and Special Deputies to pay dues to the Association. There was also evidence that Rioux required some Deputies to buy tickets to fundraisers, including events for Rioux's re-election efforts.

The exchange of money did not end there. While the Deputies and Special Deputies paid the Association, the Association paid for: (1) Rioux's monthly dues and expenses at the posh Hartford Club; (2) travel and convention expenses for Rioux and his wife; (3) restaurant expenses and numerous personal calls from Rioux's car phone; (4) a personal Christmas party and personalized Christmas cards for Rioux; (5) a lobbyist; and (6) personal contributions to the charities of Rioux's choice. The President and Treasurer of the Association, themselves Deputies, testified that they tried unsuccessfully to curb these expenses, but came to understand that if they refused to pay the bills submitted by the Sheriff they would not be reappointed.

The government also offered evidence that Rioux and supervisors within the Sheriff's Department notified Deputies and Special Deputies that reappointment was contingent upon payment of Association dues. While some Deputies testified that they received notification of this condition only from supervisors and not Rioux himself, the government produced letters from Rioux addressed to Deputies and Special Deputies announcing that their reappointment was contingent upon the payment of Association dues. After a four-week trial, the jury found Rioux guilty of one count of Mail Fraud, 18 U.S.C. § 1341, and one count of violation of the Travel Act, 18 U.S.C. § 1952.

During the course of the trial, Rioux moved to: (1) dismiss the indictment or the jury under the Sixth Amendment, the Fifth Amendment, or the Jury Selection and Service Act ("JSSA") because of an unconstitutional underrepresentation of Blacks and Hispanics in the jury pool; and (2) dismiss the indictment based on a violation of the Grand Jury Secrecy Rule. The court denied the jury representation motion, holding that Blacks and Hispanics were not underrepresented and, even if they were, the underrepresentation was not due to systematic exclusion. After considering government affidavits denying allegations of wrongdoing, the court also denied the Grand Jury Secrecy Rule motion.

III. Sentencing

The Office of Probation prepared a Sentencing Report, setting a total offense level at 24, including a four point enhancement pursuant to U.S.S.G. § 3B1.1(a) for Rioux's leadership role in the extortionate arrangement. Rioux objected to the four point enhancement, arguing that he "inherited" the corrupt system from previous Sheriffs. The court agreed and reduced Rioux's offense level to 20.

The court also considered Rioux's health problems. He had a kidney transplant some 20 years ago, and as a result of the drugs prescribed for his kidney trouble, Rioux developed bone problems requiring a double hip replacement. His doctor stated that Rioux's condition required regular doses of medication and blood tests.

The court also heard of Rioux's "good acts," specifically his: (1) hiring of an impoverished Hispanic woman as a Special Deputy; (2) personal loan to an immigrant who wished to purchase a home owned by Rioux; (3) contributions to charities; and (4) leadership in fundraising efforts.

As a result of all these circumstances, the court reduced the offense level from 20 to 10, and sentenced Rioux to three years' probation, six months' home confinement, and 500 hours of community service.

Rioux appeals claiming: (1) the New Haven Division of the District of Connecticut's system of selecting jurors resulted in underrepresentation of Blacks and Hispanics in violation of the Sixth Amendment, the JSSA, and the Equal Protection Clause of the Fifth Amendment; (2) the trial judge impermissibly admitted the hearsay testimony of Deputies regarding their supervisors' statements that payment of dues was a condition of reappointment; (3) there was an impermissible variance between the evidence adduced at trial (of threatened termination or suspension) and the indictment (charging Rioux with threats of suspension and termination); and (4) the government violated the Grand Jury Secrecy Rule.

The government cross-appeals, claiming that the judge's downward departure based on Rioux's medical condition and "good deeds" was in error.

DISCUSSION
I. Sixth Amendment Challenge to Jury Selection System
A. Introduction

Rioux's major argument is that the New Haven Division of the District of Connecticut's jury selection system underrepresents Blacks and Hispanics in violation of the Sixth Amendment. He claims that, while this Court has not selected a single statistical method of analysis suitable for Sixth Amendment challenges, under any of the theories suggested by this and other Circuits, there is no question that Blacks and Hispanics were unconstitutionally underrepresented in Connecticut. We disagree.

B. The Duren Test

The District of Connecticut follows a three-step process to select a jury venire. First, the Clerk of the district court compiles a "master list" from voter registration tallies, and supplements this list with information from the Department of Motor Vehicles. Second, the Clerk weeds out from the master list those persons who are ineligible for jury service, resulting in a "qualified wheel." Finally, the Clerk selects jury venires at random from the qualified wheel.

The Sixth Amendment guarantees a criminal defendant a jury selected from a fair cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 697-98, 42 L.Ed.2d 690 (1975). In Duren v. Missouri, the Supreme Court set forth the three elements that must be shown to establish a prima facie violation of the fair-cross-section requirement:

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

Rioux has satisfied the first prong of the Duren test: Blacks and Hispanics are unquestionably "distinctive" groups for the purposes of a fair-cross-section analysis. See United States v. Jackman,...

To continue reading

Request your trial
181 cases
  • State v. Gibbs
    • United States
    • Connecticut Supreme Court
    • 19 Septiembre 2000
    ...are considered inaccurate when the distinctive group at issue represents a very small portion of the community; see United States v. Rioux, 97 F.3d 648, 656 (2d Cir. 1996); Thomas v. Borg, 159 F.3d 1147, 1150 (9th Cir. 1998); and the statistical decision theory's focus on randomness is, by ......
  • State v. Tremblay
    • United States
    • Rhode Island Superior Court
    • 19 Marzo 2003
    ...to counteract such influences, the failure to do so cannot constitute systematic exclusion." Rioux, 930 F.Supp. at 1578, aff'd, 97 F.3d 648 (2nd Cir. 1996) (emph. added); United States v. Cecil, 836 1431, 1447 (4th Cir. 1988) (noting that " '[d]isparities . . . can frequently be attributed ......
  • Shaikh v. Commonwealth, Record No. 2614-03-4 (VA 1/25/2005)
    • United States
    • Virginia Supreme Court
    • 25 Enero 2005
    ...conviction. Affirmed. * Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1. See, e.g., United States v. Rioux, 97 F.3d 648, 659 (2d Cir. 1996) ("The requirement that jurors speak English is unquestionably reasonable."); United States v. Speer, 30 F.3d 605, 611 (5......
  • United States v. Scott
    • United States
    • U.S. District Court — Southern District of New York
    • 28 Junio 2021
    ...be defined by: (1) the master list; (2) the qualified wheel; (3) the venires; or (4) a combination of the three," United States v. Rioux , 97 F.3d 648, 657 (2d Cir. 1996), it has not articulated how a court should select one of these options. In fact, the variation among Second Circuit prec......
  • Request a trial to view additional results
4 books & journal articles
  • Finding What Was Lost: Sorting Out the Custodian's Privilege Against Self-incrimination from the Compelled Production of Records
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 77, 2021
    • Invalid date
    ...the scope of the agency." Pappas v. Middle Earth Condominium Ass'n, 963 F.2d 534, 537 (2d Cir. 1992). See also United States v. Rioux, 97 F.3d 648, 660-61 (2d Cir. 1996)("[D]eclarant need not be the 'final decision maker' . . . for his statement on those matters to be deemed within the scop......
  • Testimonial Evidence
    • United States
    • James Publishing Practical Law Books Employment Evidence
    • 1 Abril 2022
    ...Department of Health Office of Medicaid Inspector General , 2019 WL 4735484 (S.D.N.Y. Sept. 27, 2019 (citing United States v. Rioux , 97 F.3d 648, 661 (2d Cir. 1996) (“The statements of agents with supervisory power regarding ‘the attitudes, intentions or policies of ... higher-ups’ do conc......
  • Trials
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • 1 Agosto 2022
    ...because actual percentage of population was 4.86% and jury pool comprised of 1.89% for absolute disparity of 2.97%); U.S. v. Rioux, 97 F.3d 648, 655-58 (2d Cir. 1996) (African-Americans and Hispanics fairly represented because absolute disparity in range of 1.5-2.1% in grand and petit jurie......
  • Sentencing
    • United States
    • James Publishing Practical Law Books Federal Criminal Practice
    • 30 Abril 2022
    ...letters from 2 doctors explaining that defendant’s medical condition could appreciably worsen if imprisoned); United States v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996) (affirming 10-level departure to 6 months home confinement and 3 years probation for mail fraud conviction, based on serious ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT