U.S. v. Barber

• Decision Date: 14 January 1982
• Docket Number: No. 79-5278,79-5278
• Citation: 668 F.2d 778
• Parties: 10 Fed. R. Evid. Serv. 258 UNITED STATES of America, Appellee, v. J. Richard BARBER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 778

668 F.2d 778

10 Fed. R. Evid. Serv. 258

UNITED STATES of America, Appellee, v. J. Richard BARBER, Appellant.

No. 79-5278.

United States Court of Appeals Fourth Circuit.

Argued May 8, 1981.

Decided Jan. 14, 1982.

Rebecca A. Baitty, Charleston, W.Va. (Rudolph L. Di Trapano, Di Trapano, Jackson & Buffa, L.C., Timothy N. Barber, Charleston, W.Va., on brief) for appellant.

Rebecca A. Betts, Asst. U.S. Atty., Charleston, W.Va. (Wayne A. Rich, Jr., U.S. Atty., Marye L. Wright, Asst. U.S. Atty., Charleston, W.Va., on brief) for appellee.

Before BUTZNER and MURNAGHAN, Circuit Judges, and RAMSEY ^*, District Judge.

MURNAGHAN, Circuit Judge:

J. Richard Barber was, from 1969 on, an official of the West Virginia Alcoholic Beverage Control Commission ("ABCC") rising in April, 1973 to the top position of Commissioner, which he held until at least September, 1976. An indictment was returned against him on May 2, 1979. Barber was convicted of violating the Racketeer Influenced and Corrupt Organization ("RICO") statute, 18 U.S.C. § 1962(c) (one count), the Hobbs Act, 18 U.S.C. § 1951 (six counts), and the mail fraud statute, 18 U.S.C. § 1341 (thirteen counts). He was sentenced on each count to three years imprisonment, all impositions to be served concurrently.

At trial, the government introduced evidence to show that Barber used his position as ABCC Commissioner to obtain free liquor for himself and numerous high officials of the state, and that he solicited and accepted cash payments from certain liquor companies. According to the government's proof, the Commission, which held a monopoly on alcoholic beverage sales in West Virginia, maintained a "withdrawal" system whereby liquor company representatives could, for business promotional purposes, withdraw liquor from the state's warehouse (the liquor having already been paid for by the state), and then reimburse the state for its withdrawal.

Prior to 1970, when the defendant became Acting Commissioner, the Commissioner began using the system in reverse. Utilizing the same ABCC documents, the Commissioner himself began to withdraw liquor and to obtain "authorization" from the liquor companies after-the-fact. The companies would then be billed by the warehouse for the withdrawn quantities, although they found their way, not to the companies, but to destinations designated by the Commissioner.

The proof at trial also permitted a finding that during 1975 and 1976 Barber manipulated the "breakage" system in a similar fashion. Normally, when a shipment included damaged products, the warehouse would send an "Affidavit Concerning Damage" to the concerned company, which thereupon absorbed the breakage loss. According to trial testimony, Barber, with respect to two of the companies, manipulated the breakage system by setting aside for his own use salable merchandise, but reporting it to the company concerned as breakage.

Finally, the defendant was charged with soliciting and accepting thousands of dollars in bribes from certain liquor companies. One witness, for example, testified that, in response to a plea for a political contribution, American Distilling Company authorized him to give Barber $1,000, which the witness then delivered in cash to Barber in a white envelope.

On September 17, 1975, Barber was interviewed by an FBI agent concerning his knowledge of campaign financing during the 1972 gubernatorial election. The FBI prepared a summary of the interview on an "FBI 302" form. Subsequently, in December, 1975, Barber was subpoenaed by a grand jury investigating Governor Arch A. Moore. Again he was interviewed, this time by the United States attorney, with an FBI agent present. Again an FBI 302 form was prepared. Barber also testified before the grand jury. The trial judge found that, on December 11, 1975, the then United States attorney "implicitly assured" Barber and his attorney that his responses to questions in the September and December, 1975 interviews and the December, 1975 grand jury hearing "would not be used against him either directly or through leads gained therefrom."

On appeal, Barber raises several arguments, ranging from whether the "taint" of the use immunity of his testimony affected the government's preparation of the indictment and prosecution of him, to the sufficiency of the evidence to convict him, to the charge that he was selectively prosecuted, and finally to the contention that for various reasons he was denied a fair trial.

I. "Use" Immunity Question

In May, 1978, after the government began investigating Barber's conduct as Liquor Commissioner, the 1975 FBI 302 forms summarizing Barber's interviews (for the contents of which Barber had been granted use immunity) were discovered by agents of the United States involved in the investigation. Barber contends that the government failed to rebut the presumption that the investigation was tainted by the May, 1978 discovery and knowledge of the contents of the 1975 interviews. Therefore, he argues, the entire indictment should have been dismissed.

Defendant's contentions must be rejected. First, the inculpatory statements made in the 1975 interviews all relate to acts involving the 1972 election and Barber's use of his office to raise money for the governor's campaign war chest. The thrust of several counts in the instant indictment is, on the other hand, directed towards the quite distinct matter of the defendant's use of the withdrawal system. Thus, even if we should assume that the FBI 302 forms were wrongly used by the government in its investigation of Barber, nevertheless, the information contained in the form could have been of no use with respect to the subsequent liquor withdrawal investigation.

Second, by the time the prosecution gained access to the FBI 302 forms, its investigation was already well under way. The government has satisfactorily demonstrated that, before it became aware of the FBI 302 forms, it had already learned of the matters mentioned in the forms. In apparent recognition of the force of the government's presentation, Barber retreats to the position that the information contained in the forms was the first confirmation received by the prosecutors of their independently obtained information that Barber had been involved in the solicitation and collection of campaign funds. ¹

That supposition, however, is refuted by testimony of the FBI agents and government lawyers that they had made no use of the immunized statements. Given that the investigation was already focusing, before the FBI 302 forms surfaced, on all aspects of Barber's use of his office to extract benefits from the liquor industry, it strains credulity to assert that the government would not have uncovered, quite independently of the forms, further confirmation of its strong investigatory leads. The manner in which things evolved downplays any significance of the FBI 302 forms as confirmation.

There is no indication of game playing by the government, no effort to obtain an unfair advantage. Rather papers have again displayed an understandable propensity to get lost in the bureaucratic maze. We conclude that the district judge was justified in his determinations that there simply was no violation of the use immunity conferred on Barber, inasmuch as: (a) the government was unaware of the grand jury transcript for December 11, 1975 until late June of 1979 and had not used it for investigation purposes or for preparation for trial in the present case, and (b) while the government knew of the FBI forms for the September and December 1975 interviews since at least the summer of 1978, the government had satisfactorily established that the immunized statements had not been used in connection with the instant case.

II. Selective Prosecution

Barber contends that he was selectively prosecuted. Pointing to the longstanding nature of the withdrawal system, he argues that he was singled out for prosecution because of poor prosecutorial motives. However, the defendant has a heavy burden to prove "invidious discrimination," United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972), based upon an "arbitrary classification," Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). That affirmative obligation has not been satisfied. While there was testimony that the withdrawal system existed for years before Barber took over as Commissioner, there was also abundant testimony that the defendant took advantage of the system far more than any earlier Commissioner, and also that Barber's immediate predecessor did not improperly use the withdrawal system.

There is simply nothing here pointing to arbitrary, bad faith considerations such as race, religion, or the desire to prevent exercise of constitutional rights. See e.g., Crowthers, supra (First Amendment right to protest); United States v. Ojala, 544 F.2d 940 (8th Cir.1976). We have simply the prosecutor's judgment leading to prosecution, and it cannot simply be assumed to have been based on an unworthy motive.

III. Sufficiency of the Evidence

A. Hobbs Act

Barber first argues that his conviction under the Hobbs Act, 18 U.S.C. § 1951, is not supported by sufficient evidence.

The Hobbs Act proscribes extortion, defined, for the purposes here pertinent, as obtaining property from another, with his consent, "under color of official right." The provision has been interpreted so as

not (to) require proof of specific acts by the public officials demonstrating force, threats, or the use of fear so long as the victim consented (to the provision of a benefit) because of the office or position held by the official who obtained the money.

If the public official knows the motivation of the victim focuses on the public official's office and money is obtained by the public official which was not lawfully due and owing to him or the office he represented, that is sufficient to satisfy the requirements of the law of extortion under color of official...