Ansley v. Stynchcombe

• Decision Date: 12 June 1973
• Docket Number: No. 72-3189.,72-3189.
• Parties: Hugh ANSLEY, Petitioner-Appellant, v. Leroy STYNCHCOMBE, Sheriff, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

480 F.2d 437 (1973)

Hugh ANSLEY, Petitioner-Appellant, v. Leroy STYNCHCOMBE, Sheriff, Respondent-Appellee.

No. 72-3189.

United States Court of Appeals, Fifth Circuit.

June 12, 1973.

Beverly Agee, John Nuckolls, Edward T. M. Garland, Atlanta, Ga., for petitioner-appellant.

Joel M. Feldman, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Lewis R. Slaton, Carter Goode, Asst. Dist. Attys., Atlanta, Ga., for respondent-appellee.

Before WISDOM, DYER and INGRAHAM, Circuit Judges.

DYER, Circuit Judge:

Ansley was convicted by a jury on the second count of a two count indictment, charging that he aided and abetted Petree, an Alderman of the City of Atlanta, in unlawfully influencing legislative action. Under instructions from the State trial judge, the same jury simultaneously adquitted Ansley on count 1, which charged that he aided and abetted Petree in the solicitation of a bribe. The Georgia Court of Appeals affirmed Ansley's conviction, and both the Georgia Supreme Court and the United States Supreme Court denied certiorari. Ansley v. State, 1971, 124 Ga.App. 670, 185 S.E.2d 562, cert. denied, 1972, 408 U.S. 922, 92 S.Ct. 2503, 33 L.Ed.2d 341. Asserting the same contentions as raised on direct appeal in the State court, Ansley then sought and was denied habeas relief in the district court below. We affirm.

On the basis of an ex parte verified petition of the District Attorney of Atlanta and a supporting affidavit of one of his assistants, a State judge in Atlanta issued an investigative warrant and order authorizing the surveillance of Ansley, including the use of electronic devices, for the purpose of hearing and recording conversations between Ansley and other named and unnamed persons so as to obtain evidence relating to the bribery charges. Pursuant to this authorization, electronic equipment was installed on telephones in two rooms of a local motel to record telephone conversations between Ansley and Crist, an undercover agent of the District Attorney's office, who was posing as a representative of a land developer. Crist used the telephone to place a long distance call to Ansley. Ansley later returned the call and agreed to travel to Atlanta to meet with Crist at the motel. Other State agents listened to the conversation and recorded it, but of course this was done with Crist's consent. Prior to the time that Ansley arrived at the motel, the District Attorney's office obtained warrants for the arrest of Petree and Ansley. Additional electronic devices were deployed in the motel room and Crist was equipped with a small transmitter to relay all of his conversations with Ansley and Petree, whether inside or outside of the bugged room, to another room where other agents could listen to and record them.

After Ansley arrived at the motel, he met with Crist and other undercover agents, posing as representatives of other land developers. They were joined by Petree and their conversations in the motel room, by the swimming pool, and while in the motel bar were recorded. When it became apparent that the actual bribe was not going to be consummated at that time, Ansley and Petree were arrested pursuant to the warrants obtained earlier. Later the recordings of the conversations were admitted into evidence at Ansley's and Petree's joint trial.

Ansley's first contention on appeal is that the essential elements of count 1 (bribery) and of count 2 (improperly influencing legislative action) are the same and that he was, therefore, twice placed in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments. Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. Count 1 of the indictment charged Ansley with aiding and abetting Petree in the solicitation of $30,000 for Petree "to use his influence and to obtain his vote to secure the passage of" zoning legislation pending before the Atlanta Board of Aldermen in violation of Ga.Code Ann. § 26-2301.¹ In count 2, Ansley was charged with violating Ga. Code Ann. § 26-2304(b)² in that he aided and abetted Petree in soliciting $30,000 "for an agreement to procure the passage of" the same pending legislation.

Fundamentally, resolution of this issue depends upon interpretation of the Georgia statutes involved. Great, if not controlling, weight must be given to the Georgia courts' interpretation of these statutes before constitutional issues based on the questioned statutes can be determined by federal courts.³ On direct appeal, the Georgia Court of Appeals explained that § 26-2301 is restricted to bribes to influence an official in his performance of any act related to functions of his office or his employment, whereas § 26-2304(b) includes the sale of the official's influence on others who are members of a legislative body. Ansley v. State, supra, 185 S.E.2d at 566:

To the extent that it is alleged under Count 1 that Petree, with Ansley as his abettor, solicitated the sale of his own vote as a member of the legislative body, the alleged transaction is an offense under Code Ann. § 26-2301(2), but should it appear that the solicitation was for an agreement, expressed or implied, to procure or attempt to procure the passage or defeat of legislation, it involves the attempted sale of his influence on other members of the legislative body, and comes under Code Ann. § 26-2304(b). In brief, we see a distinction in accusing Petree, in conjunction with Ansley, of soliciting the sale of his own vote, and in accusing him, in conjunction with another, of soliciting the sale of his influence in procuring favorable legislative action, which might or might not include his own vote.

Thus the Georgia court concluded that the provisions define separate offenses, and we agree that this is a reasonable interpretation.

Ansley argues, nevertheless, that he was placed in jeopardy once for soliciting a bribe for Petree to procure the passage of legislation (count 2) when the jury acquitted him on count 1, since the factual allegations in count 1 charged that the solicitation of the $30,000 was for both Petree's vote and his influence. Ansley reasons that, in violation of the Constitution, he was placed in jeopardy a second time for this offense when the jury proceeded to consider the charges in count 2. We disagree. Significantly, even though the facts alleged in count 1 may have improperly embraced violations of both § 26-2301 (influencing Petree in the performance of his official duties — his vote) and § 26-2304(b) (securing Petree's agreement to procure the passage of favorable legislation by whatever means available to him), we think that, in view of the use of the conjunction and in count 1, the jury could not have convicted Ansley under that count unless it believed that the agreement was for Petree to sell both his vote and his influence. On the other hand, given the language of the indictment, if the jury believed, as it apparently must have, that the agreement was for either the sale of his vote or the sale of his influence with the other Alderman or for some other method of obtaining passage of the legislation, it could have convicted him only on count 2. Thus, although the facts alleged in count 1 may have...