Agan v. Vaughn

• Decision Date: 27 August 1997
• Docket Number: No. 96-8085,96-8085
• Parties: 11 Fla. L. Weekly Fed. C 455 Ramsey AGAN, Petitioner-Appellant, v. James VAUGHN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1538

119 F.3d 1538

11 Fla. L. Weekly Fed. C 455

Ramsey AGAN, Petitioner-Appellant, v. James VAUGHN, Respondent-Appellee.

No. 96-8085.

United States Court of Appeals, Eleventh Circuit.

Aug. 27, 1997.

George Edwin Butler, II, Atlanta, GA, for Petitioner-Appellant.

Michael J. Bowers, Mary Beth Westmoreland, Assistant Attorney General, Atlanta, GA, for Respondent-Appellee.

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

Before ANDERSON and CARNES, Circuit Judges, and STROM ^*, Senior District Judge.

CARNES, Circuit Judge:

Ramsey Agan was convicted on three counts of bribery in the Superior Court of DeKalb County, Georgia. After exhausting his state remedies, Agan filed in federal district court a 28 U.S.C. § 2254 petition for a writ of habeas corpus. This appeal arises from the district court's denial of Agan's petition.

I. BACKGROUND

Because a detailed recitation of the facts can be found in the Georgia Court of Appeals opinion on direct appeal, see Agan v. State, 191 Ga.App. 92, 380 S.E.2d 757, 759-60 (1989), aff'd in part, rev'd in part, 259 Ga. 541, 384 S.E.2d 863 (1989), and cert. denied, 494 U.S. 1057, 110 S.Ct. 1526, 108 L.Ed.2d 765 (1990), we will summarize them only briefly here. Agan, the Honorary Turkish Consul in Atlanta, owned a piece of property in DeKalb County, Georgia, upon which he wanted to construct a hotel. In order to construct the hotel, he needed a building height variance from the DeKalb County Commission. The Commission rejected the variance application twice. In conjunction with his third request, Agan approached and met separately with two individual commissioners in an attempt to persuade them to get the variance application approved. Agan gave one of the commissioners five checks totaling $4,500, each check marked "campaign contribution." He gave the other commissioner a $3,000 check, also marked "campaign contribution." Agan gave the checks to the commissioners over their protests that they were not up for reelection, and over one commissioner's objection that he did not even have a campaign account.

A jury convicted Agan on three counts of violating § 16-10-2(a)(1) of the Georgia Code, which defines the crime of bribery to include offering or giving to a public official any consideration "to which he or she is not entitled with the purpose of influencing him or her in the performance of any act related to the functions of his or her office or employment." On direct appeal, for which Agan had new counsel, the Georgia Court of Appeals reversed Agan's conviction because of a jury instruction, holding that "the trial court's definition of 'entitled,' while not wholly incorrect, was incomplete and misleading in the context of this case and could have misled the jury to appellant's prejudice." Agan, 380 S.E.2d at 762 (citation omitted).

The Georgia Supreme Court reversed that reversal. See State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989). The Georgia Supreme Court interpreted the Georgia Court of Appeals' holding to mean "in effect, that if money given to an office holder qualifies as a campaign contribution, requiring reporting under the Ethics in Government Act, OCGA § 21-5-1 et seq., then it cannot be a bribe." Id. at 866. The Georgia Supreme Court rejected that interpretation of the law and reinstated Agan's conviction, subject to a remand for further proceedings relating to his selective prosecution claim. See id. at 868-70. Agan petitioned for a writ of certiorari from the United States Supreme Court, but it was denied. See Agan v. Georgia, 494 U.S. 1057, 110 S.Ct. 1526, 108 L.Ed.2d 765 (1990).

On remand, after an evidentiary hearing, the trial court denied Agan's motion to dismiss for selective prosecution. While his post-remand appeal from the denial of his motion to dismiss on selective prosecution grounds was pending, Agan filed an extraordinary motion for a new trial. That motion alleged for the first time that trial counsel had prevented Agan from testifying at his trial and thereby had rendered ineffective assistance. After the trial court held a hearing on the issue, it determined that Agan had waived the claim. Accordingly, the trial court entered an order denying the new trial motion. The Georgia Court of Appeals denied Agan's application for discretionary review of that ruling.

Meanwhile, both the Georgia Court of Appeals and the Georgia Supreme Court affirmed the denial of Agan's motion to dismiss for selective prosecution, and the U.S. Supreme Court again denied Agan's petition for certiorari. See Agan v. State, 203 Ga.App. 363, 417 S.E.2d 156 (1992), aff'd, 262 Ga. 783, 426 S.E.2d 552 (1993), cert. denied, 510 U.S. 819, 114 S.Ct. 74, 126 L.Ed.2d 43 (1993).

Having exhausted his state remedies, Agan filed a federal habeas petition. In it, Agan claimed that: (1) his conviction violated his First Amendment rights to free association and free speech; (2) the jury charge in his case violated his Fourteenth Amendment right to due process; (3) his conviction was obtained through unconstitutional selective prosecution; and (4) his attorney and the trial court denied him the right to testify, resulting in ineffective assistance of counsel. The district court referred Agan's petition to a magistrate judge, who recommended that the petition be denied. The district court adopted the magistrate judge's recommendation and denied Agan's petition. Agan filed a timely appeal to this Court.

II. STANDARDS OF REVIEW

On appeal, Agan contends that his conviction violates his First Amendment rights to free association and free speech and his Fourteenth Amendment right to due process. We review those purely legal questions de novo. See Redner v. Dean, 29 F.3d 1495, 1499 (11th Cir.1994) (reviewing First Amendment habeas claim); McCoy v. Newsome, 953 F.2d 1252, 1264-65 (11th Cir.1992) (reviewing Fourteenth Amendment due process claim based on inadequate jury charge). Agan also pursues his ineffective assistance of counsel claim, which presents a mixed question of law and fact that we review de novo. See Huynh v. King, 95 F.3d 1052, 1056 (11th Cir.1996). The State argues that Agan is barred from raising that claim because of procedural default. Whether Agan is procedurally barred from raising a particular claim is a mixed question of law and fact, which we also review de novo. See Lusk v. Singletary, 112 F.3d 1103, 1105 (11th Cir.1997) (reviewing district court's determination that petitioner had defaulted issue in state court system) (citation omitted). Agan has abandoned his selective prosecution claim.

III. DISCUSSION

Agan is not entitled to federal habeas relief unless he "is in custody in violation of the Constitution or laws or treaties of the United States." ¹ 28 U.S.C.A. § 2254(a) (West 1994).

A. FIRST AMENDMENT ISSUES

Agan claims that his conviction under Georgia's bribery statute violates the First Amendment. Agan was convicted for violating the following portion of that statute:

A person commits the offense of bribery when: (1) He or she gives or offers to give to any person acting for or on behalf of the state or any political subdivision thereof, or of any agency of either, any benefit, reward, or consideration to which he or she is not entitled with the purpose of influencing him or her in the performance of any act related to the functions of his or her office or employment....

Ga.Code Ann. § 16-10-2(a) (1996). He challenges the statute's constitutionality on its face and as applied to his conduct. ²

1. Facial Attack

Agan claims that Georgia's bribery statute is overbroad. A statute that may be applied constitutionally to conduct in some cases is nevertheless facially invalid under the First Amendment if it is substantially overbroad, that is, its application would be unconstitutional in a substantial proportion of cases. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973) ("[W]here conduct and not merely speech is involved ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."); Clean Up '84 v. Heinrich, 759 F.2d 1511, 1513 (11th Cir.1985). According to Agan, Georgia's bribery statute criminalizes the donation of campaign contributions whenever the donor hopes that the contributions will "influence" a state officer's official actions. Agan asserts that: (1) campaign donors usually hope to "influence" the official actions of state officers; (2) there are benign or "good influencing campaign contributions"; and (3) the First Amendment protects the donation of those contributions. He argues that the Georgia statute is unconstitutionally overbroad, because it does not differentiate between good influencing campaign contributions and bad influencing campaign contributions. ³ Agan concedes that if the Georgia bribery statute criminalizes only those contributions that are made with corrupt intent, it is facially valid.

Georgia, unlike many other states, does not include an element of corrupt intent in the text of its bribery statute. Compare Ga.Code Ann. § 16-10-2 (1996) with Ala.Code § 13A-10-61(a) (1975) ("A person commits the crime of bribery if (1) He offers ... any thing of value upon a public servant with the intent that the public servant's vote, opinion, judgment, exercise of discretion or other action in his official capacity will thereby be corruptly influenced....") (emphasis added); Ariz.Rev.Stat. Ann. § 13-2602 (West 1989) ("A person commits bribery of a public servant or party officer if with corrupt intent ... [s]uch person offers, confers or agrees to confer any benefit upon a public servant or party officer with the intent to influence the public servant's or party officer's vote, opinion, judgment, exercise of discretion or other action in his official capacity as a public servant or party officer.") (emphasis added); Fla. Stat. Ann. § 838.015(1) (West 1994) (" 'Bribery'...