U.S. v. Blandford, No. 93-6011
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | RALPH B. GUY, Jr.; The court has reviewed Chief Judge Bertelsman's orders and concludes that the orders extended for the ten day period in the instance of the first order and for a thirty day period in the second instance. During these periods; DAVID |
| Citation | 33 F.3d 685 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald J. BLANDFORD, Defendant-Appellant. |
| Docket Number | No. 93-6011 |
| Decision Date | 07 September 1994 |
Page 685
v.
Donald J. BLANDFORD, Defendant-Appellant.
Sixth Circuit.
Decided Sept. 7, 1994.
Page 688
Terry Cushing, Asst. U.S. Atty. (briefed), Stephen G. Frye, Asst. U.S. Atty., Stephen B. Pence, Asst. U.S. Atty. (argued), Louisville, KY, Edwin J. Walbourn, III, Office of U.S. Atty., Covington, KY, for U.S.
Morton Holbrook, Allen W. Holbrook (argued and briefed), Holbrook, Wible, Sullivan & Helmers, Owensboro, KY, for Donald J. Blandford.
Before NELSON, Circuit Judge; GUY, * Senior Circuit Judge; and QUIST, District Judge. **
GUY, Senior Circuit Judge, delivered the opinion of the Court. NELSON, Circuit Judge (pp. 712-14), delivered a separate concurring opinion. QUIST, District Judge (pp. 714-15), delivered a separate opinion concurring in part and dissenting in part in Judge GUY's opinion, and concurring in Judge NELSON's opinion.
RALPH B. GUY, Jr., Senior Circuit Judge.
Following a jury trial, defendant was convicted of (1) extortion, in violation of the Hobbs Act, 18 U.S.C. Sec. 1951; (2) racketeering, in violation of the federal RICO statute, 18 U.S.C. Sec. 1962(c); and (3) making false statements to federal investigators, in violation of 18 U.S.C. Sec. 1001. On appeal, defendant challenges these convictions as well as his sentence. For the following reasons, we affirm.
I.
This case arises out of an FBI investigation into public corruption in Kentucky. The investigation, dubbed "Operation BOPTROT," focused on certain members of the Kentucky General Assembly who were suspected of extorting cash payments in exchange for assurances that they would take a particular stance on legislation pertaining to the horse racing industry. Initiated in September 1990, Operation BOPTROT ultimately ensnared several public officials, including Donald J. Blandford, Speaker of Kentucky's House of Representatives. The circumstances that led to Blandford's conviction are as follows.
A. Hobbs Act Violations
At all times relevant to this appeal, Riverside Downs, a harness racing track located in Henderson, Kentucky, cooperated with the FBI. As part of its probe, the FBI directed Riverside Downs to hire John "Jay" Spurrier
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ostensibly to promote the track's interests in the state assembly. 1 Spurrier was a logical choice; a prominent lobbyist from Frankfort, Kentucky, he chaired Kentucky's Harness Racing Commission. On Spurrier's advice, Riverside Downs then hired William McBee. McBee, also a lobbyist, was a former state representative who had recently lost a bid for re-election.An important part of Spurrier's and McBee's work on behalf of Riverside Downs was their effort to stifle any proposed legislation that would restrict the track's ability to simulcast thoroughbred races. In particular, Riverside Downs, like other harness racing tracks, was concerned about the possible enactment of "breed-to-breed" legislation. Under such legislation, race tracks would be able to simulcast only those races involving similar breeds of horses.
Spurrier became aware of Operation BOPTROT after he and McBee had decided to assist Riverside Downs's effort to block any proposed breed-to-breed legislation. Spurrier agreed to cooperate with the investigation and subsequently informed the FBI that Blandford, among others, would be willing to accept money in exchange for his opposition to breed-to-breed legislation. 2 Spurrier added, however, that Blandford would accept payment only from McBee, who, at the time, was still unaware of the investigation (not to mention Spurrier's complicity). Although the FBI did not immediately attempt to bring McBee into the fold, McBee nevertheless became an unwitting participant, assisting the investigation on at least three occasions by passing FBI money to Blandford.
The first such occasion took place in late January 1992 while various lobbyists, state legislators (including Spurrier, McBee, and Blandford), and their guests were on a trip to Florida. Similar trips, which were financed by various interest groups (the harness racing industry among them), had been taking place on an annual basis for a number of years. Prior to leaving on the trip, Spurrier and McBee discussed the possibility of soliciting, by way of an illegitimate payment, Blandford's assistance in defeating breed-to-breed legislation. To this end, McBee was provided with $500 by Chris Koumas, a Riverside Downs representative who was cooperating with the investigation. Once in Florida, McBee handed the money over to Blandford. In so doing, McBee described the payment as "walking around" money. He did
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not mention breed-to-breed legislation 3 nor did he tape record what occurred during the transaction. As McBee would later testify, however, Blandford had accepted money from him on at least one prior occasion (in 1990) knowing that the money was intended to influence his position with respect to pending horse racing legislation.The FBI arranged for McBee to make a second payment to Blandford soon after Spurrier, McBee, and Blandford returned from the Florida junket. This time the transfer was to take place during a dinner party to be held at Spurrier's hotel suite in Frankfort. In preparation for the dinner and with court authorization, the FBI set up video and audio surveillance equipment in different parts of Spurrier's suite. The dinner went forward as planned on February 20, 1992. Blandford was not the only general assembly member or guest to attend. Representative Jerry Bronger, among others, also was present. During the course of the dinner, Blandford accepted $500 from McBee in one of the suite's two bedrooms. 4 Once again, however, McBee did not mention breed-to-breed legislation in handing over the cash. He simply stated: "Here's a little something from MR. SPURRIER and me and the harness horse people and ... so forth." Blandford replied: "All right. Well that's wonderful!" 5
A second dinner in Spurrier's hotel suite would provide McBee with yet another opportunity to give FBI money to Blandford. Although, at the time, there was no breed-to-breed restriction on simulcasting and inter-track wagering in Kentucky's 1992 horse racing legislation ("horse bill"), the possibility that such a restriction would be added to the horse bill still remained. As industry participants and the FBI were well aware, the horse bill, which was drafted by the governor and submitted to the relevant house committee on March 2, 1992, could be amended to include a breed-to-breed restriction as late as March 23, 1992.
Again, the FBI obtained court approval to place surveillance equipment in selected spots in Spurrier's suite. On this occasion, the bedroom in which the February 20 dinner payments had occurred was outfitted with both audio and video surveillance devices. Prior to this dinner, which took place on March 11, 1992, Spurrier provided McBee with another $500 to give to Blandford. Spurrier specifically instructed McBee to inform Blandford that the payment was conditioned upon Blandford's opposition to breed-to-breed legislation. Notwithstanding Spurrier's instructions, McBee was only marginally less cryptic than before when it came to informing Blandford about the reason behind the payment. During McBee's and Blandford's conversation, which took place in the bugged bedroom, the following exchange took place:
BLANDFORD: Whatta ya got there? (CHUCKLES)
MC BEE: Another five.
BLANDFORD: Well what is that?
MC BEE: Harness people.
BLANDFORD: Huh?
MC BEE: Your governor's taking care ... your governor's taking care of the bill.
BLANDFORD: Well, what ... what ...
MC BEE: When I get it, I share! (LAUGHS)
BLANDFORD: Hey, bless your heart.
MC BEE: Huh?
BLANDFORD: Bless your heart.
MC BEE: I share with my buddies!
BLANDFORD: Are we all right?
MC BEE: No breed to breed. Ain't in there.
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BLANDFORD: (UNINTELLIGIBLE--UI)
MC BEE: Everything's doin' fine. And they're ... they're not pushing us. I know you hate Riverside but you can't legislate 'em out of business. Let 'em go out of business on their own.
BLANDFORD: Yeah, but we're ... I mean, we're not ... we don't have a con.... we don't have ah ...
MC BEE: (UI)
BLANDFORD: Okay ...
MC BEE: No ... (UI)
BLANDFORD: MR. BRERETON called me today (UI) ... that's a helluva horse bill (UI). You fin ... you finally did right. (UI) I said you don't just throw something out there and say, hey, (UI). I know that now.
MC BEE: And ah no breed to breed, RED MILE stay alive, and then that bunch down there stays alive for a little while but it'll be gone.
BLANDFORD: Yeah. Okay. All right. Thanks.
MC BEE: (UI) my bills. I'll take care of my buddies! (LAUGHS)
Later that evening, Spurrier expressed his gratitude to Blandford:
SPURRIER: Before you get to leavin', I just want to thank you (door closing), for what you've all done really for the harness people I'm dead serious, they've been fair to'em, they've been fair to especially you know my breed to breed problem.
BLANDFORD: Yeah.
SPURRIER: And I really appreciate it DONNIE and I just.
BLANDFORD: Okay.
SPURRIER: I just wanna say thank you.
BLANDFORD: Okay, hey.
SPURRIER: I'm serious.
BLANDFORD: I know, I, I understand and I know.
SPURRIER: And these people have been good and I've embarrassed them, this ITW's about broke'em.
BLANDFORD: Yeah.
SPURRIER: And, and this has kinda got me off the hook.
BLANDFORD: Okay.
SPURRIER: Thank you.
BLANDFORD: Wonderful.
SPURRIER: (UI) I mean you really just been super.
BLANDFORD: Well, just let, let me know.
SPURRIER: I know.
BLANDFORD: That's all you got to do sometime I, sometime I, sometime I may not be quick enough (door closing) to (UI), but ...
....
SPURRIER: This breed-to-breed thing was just gonna kill us.
BLANDFORD: I know, well ...
SPURRIER: No I mean just ...
BLANDFORD: (UI)
SPURRIER: ... it was [a] personal thing.
BLANDFORD:...
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