U.S. v. Blanton, 85-8737

• Decision Date: 23 July 1986
• Docket Number: No. 85-8737,85-8737
• Citation: 793 F.2d 1553
• Parties: 105 Lab.Cas. P 11,990, 21 Fed. R. Evid. Serv. 25 UNITED STATES of America, Plaintiff-Appellee, v. Robert H. BLANTON, III, Jerome Banks and Clyde Daigle, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1553

793 F.2d 1553

105 Lab.Cas. P 11,990, 21 Fed. R. Evid. Serv. 25

UNITED STATES of America, Plaintiff-Appellee, v. Robert H. BLANTON, III, Jerome Banks and Clyde Daigle Defendants-Appellants.

No. 85-8737.

United States Court of Appeals Eleventh Circuit.

July 23, 1986.

Rehearings and Rehearing En Banc Denied Sept. 2, 1986.

Lee Sexton, Jonesboro, Ga. (Court-appointed), for Blanton.

John O. Ellis, Jr., Federal Public Defender, Atlanta, Ga., for Banks and Daigle.

James W. Kesler, Asst. U.S. Atty., Atlanta, Ga., Sara Criscitelli, U.S. Dept. of Justice, Crim. Div., Washington, D.C., for the U.S.

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

Before JOHNSON and ANDERSON, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

CORRECTED OPINION

JOHNSON, Circuit Judge:

Fassbinder observed that there are occasions when "fear eats the soul." ¹ In this case the appellants sought to use the fear of workplace disruption, by themselves and others, as a means to extort from an employer peace payments through a complex, on-going conspiracy. The trial court concluded that the fear-inducing conduct of the appellants constituted, inter alia, a violation of the Hobbs Act. We agree with that conclusion, and with the others reached below, and for that reason we affirm the judgment of the trial court on all counts.

I.

The appellants in this case, Robert Blanton, Clyde Daigle, and Jerome Banks, were involved in the organization of a new labor union, the International Brotherhood of Security Services [hereinafter "IBOSS"], which sought to organize private security employees in places like factories and airports. Blanton was the first president of Local 1 of IBOSS in Baton Rouge, Louisiana. Banks was director of the Internal Secret Service [hereinafter "ISS"] of IBOSS Local 1, which functioned as Blanton's armed body guard. Daigle was the ISS secretary.

In 1984, IBOSS began an organizational drive among the security officers at the Atlanta-Hartsdale International Airport. All three appellants were seen at Hartsdale during a work stoppage and picketing episode in August of 1984. During this time IBOSS submitted petitions to the National Labor Relations Board [hereinafter "NLRB"] seeking to represent the workers at Hartsdale. Though the NLRB held hearings, during the time here relevant they issued no representation decision.

In November 1984 the other IBOSS officers effectively ousted Blanton from his position. The motivations appear to have been internal disagreements and difficulty in borrowing money due to Blanton's criminal record. Blanton had been convicted of murder ten years earlier; that conviction was reversed, after Blanton had served nine years, in a federal habeas corpus action. He had also been arrested for possession of an illegal silencer and for rape and had been convicted of shooting into an occupied home. Blanton "resigned" and was retained on a contract that provided, inter alia, that he would be paid $235,000/year for life as a consultant. Further quarrelling over the extent of Blanton's control, and an apparent desire to purge "black militants," led to the termination of the contract on December 7 of that year and the ousting of all three appellants from the union.

On December 14, 1984, Banks called the office of Frank Argenbright, president of Argenbright, Inc. Argenbright is one of the companies supplying security services to Hartsdale. Banks left a message that he wanted to help Argenbright "close down" IBOSS and left Blanton's telephone number. Mr. Argenbright knew of Blanton's criminal record due to investigations made during the earlier organizing efforts and became alarmed that this might be the beginning of an extortion attempt. Mr. Argenbright and his vice-president, Mr. Bivins, began a series of tape-recorded telephone calls with the appellants during which the latter made clear that they were out to close down IBOSS--both to help Argenbright, and to get revenge for their ouster.

Eventually FBI agents were brought into the matter and they took over the dealings with the appellants through Agent Sollars. The appellants negotiated with Sollars for a period of several months, during which the price for destroying IBOSS rose from $6000 to $18,000 plus expenses. Originally the appellants wished to be retained as "consultants" on the Argenbright payroll; later they demanded cash so that there would be no trail that would prevent Blanton from becoming head of a sweetheart company union at Argenbright after IBOSS was out of the picture.

In exchange for this money, Blanton and his two associates maintained that they would come to Atlanta and disclose secret documents to the NLRB, create a notable media event, and use their tremendous influence with the rank and file to "blow IBOSS out of the water." Blanton also made clear that he could help Argenbright set up a company union so that when IBOSS was gone no other union would come in and take over. Blanton stated that if Argenbright did not hire him IBOSS would destroy the Argenbright business. Blanton also suggested that IBOSS itself was trying to buy his documents and thus that Argenbright needed to act quickly. Finally Blanton threatened that, if Argenbright was not forthcoming, he would get rid of IBOSS anyway, set up his own union, and make things difficult for Argenbright. There were several veiled threats of possible violence, either from IBOSS or from Blanton, if things were not quickly resolved.

Because Blanton was on probation, there was some difficulty in arranging for him to come to Atlanta to consummate the deal, but eventually the details were worked out. On February 25 the three appellants arrived with a brief case of secret papers handcuffed to Daigle's wrist. Appellants met with officials of Argenbright, Inc. for 80 minutes, which meeting was recorded on sound and video tape at Argenbright headquarters. One half of the money, $9000, changed hands. The rest was to be paid upon the destruction of IBOSS. At this point, FBI agents entered the room and arrested Blanton, Banks and Daigle.

The appellants were tried before a jury on four counts: conspiracy to extort in violation of 18 U.S.C.A. Sec. 1951 (1985); extortion by threats of violence, also a violation of Section 1951; solicitation of money in exchange for sworn testimony, 18 U.S.C.A. Sec. 201(i); and solicitation of money in violation of 29 U.S.C.A. Sec. 186(a)(2), (b)(1), and (d)(2).

Blanton put on no defense. Banks and Daigle argued that they had not extorted, but merely offered to engage in a valid business deal--to help protect Argenbright from the illegal organizing actions of IBOSS. They claimed that any taped statements they made that sounded extortionate or threatening were either lies or kidding. All three were convicted on the first three counts and acquitted on the Title 29 solicitation of money count. Blanton received concurrent ten year prison terms on counts one and two, plus a five year probation term on count three. Banks and Daigle each received concurrent two year terms on counts one, two and three.

II.

This case presents three issues: A) whether the evidence is sufficient to sustain the convictions; B) whether the trial judge erred in giving some government instructions and in declining to give appellants' requested jury instructions; and C) whether the trial court erred in admitting evidence of Blanton's prior criminal record.

A.

All appellants advance the same position with respect to the sufficiency of the evidence on the extortion counts, one and two, and on the solicitation count, three.

1) Extortion:

Appellants argue that the government has failed to make out a violation of the Hobbs Act, 18 U.S.C.A. Sec. 1951 et seq. (1985), because they "never threatened to cause physical harm or economic loss to Argenbright, but were only asking for money to aid Argenbright to avoid the economic loss" that IBOSS would wreak. In essence, they argue that the threats here were neither express nor intentionally implicit--that in fact the threat came from IBOSS and that the appellants were being good samaritans trying to help Argenbright avoid the loss IBOSS would cause.

On appeal we will reverse a jury verdict for insufficient evidence only if that evidence, when viewed in the light most favorable to the government, does not substantially support the verdict. The verdict must be sustained so long as a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Lopez, 758 F.2d 1517, 1521 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 789, 88 L.Ed.2d 767 (1986). All credibility choices must be made in favor of those reached by the finder of fact. Anderson v. Bessemer City, 470 U.S. 564, ----, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985); United States v. Gianni, 678 F.2d 956, 959 (11th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982).

Justice Jackson once observed that "[w]hat a man is up to may be clear from considering his bare acts by themselves...." Cramer v. United States, 325 U.S. 1, 33, 65 S.Ct. 918, 934, 89 L.Ed. 1441 (1945). In this case, considering only the conduct and statements preserved on the record, the evidence was, to risk understatement, overwhelming. The appellants' post hoc explanation of their intentions to the contrary is notwithstanding. The appellants clearly exploited the fears of Mr. Argenbright of violence and economic loss not only from IBOSS, but from the appellants themselves. Repeated references were made to the fact that Blanton had a past criminal record, that he used the other two appellants as armed body guards, that the body guards had been surreptitiously observing high ranking Argenbright employees, and that if Mr. Argenbright did not utilize their services they might bust IBOSS and then set up their own union among...