U.S. v. Brimberry

• Decision Date: 18 September 1984
• Docket Number: No. 83-2236,83-2236
• Citation: 744 F.2d 580
• Parties: 16 Fed. R. Evid. Serv. 1078 UNITED STATES of America, Plaintiff-Appellee, v. Thomas R. BRIMBERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 580

744 F.2d 580

16 Fed. R. Evid. Serv. 1078

UNITED STATES of America, Plaintiff-Appellee, v. Thomas R. BRIMBERRY, Defendant-Appellant.

No. 83-2236.

United States Court of Appeals,

Seventh Circuit.

Argued March 28, 1984.

Decided Sept. 18, 1984.

Clifford J. Proud, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

David P. Schippers, Chicago, Ill., for defendant-appellant.

Before WOOD, CUDAHY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This is an appeal from the defendant's convictions on two counts of obstruction of justice. For the reasons set forth below, we remand the case to the trial court for an evidentiary hearing.

In February 1981, the Criminal Investigation Division of the Internal Revenue Service (IRS) began an investigation of the defendant and his wife for possible tax evasion during the years 1977 through 1980. During this period, the defendant was employed by Stix & Company, a St. Louis brokerage firm. Both this IRS investigation and a federal grand jury investigation, which began in the Southern District of Illinois in July 1981, revealed the identity of a number of individuals who were involved in the defendant's financial activities. These individuals, as well as the defendant and his wife, were interviewed by IRS agents on October 21, 1981, and the agents served several subpoenas for Stix business records.

On November 2, 1981, the defendant and the government entered into a plea agreement that allowed the defendant to plead guilty to a single tax felony count in exchange for his cooperation in the investigation of Stix affairs. Thereafter, the defendant informed the government agents of an intricate financial scheme through which millions of dollars had been diverted from Stix. The defendant also led the agents to Stix records that he said were in danger of being destroyed by a business associate. In addition, the defendant testified about the Stix fraud before representatives of the Securities and Exchange Commission (SEC) and before a grand jury in the Eastern District of Missouri.

The Missouri grand jury returned indictments against five of the other participants in the Stix fraud, including Jerry Maeras and Arthur Miller Jr. After entering into plea agreements with the government in the fall of 1982, Maeras and Miller explained the details of the Stix fraud scheme. They also revealed that, during the government investigation, the defendant had told them to destroy Stix records. On the basis of this information, the defendant was indicted for obstruction of justice.

At the defendant's trial, Miller testified that on October 21, 1981, after he was visited by IRS agents, the defendant told him to burn all his records so that the IRS would have a hard time "trying to put everything together." Trial Tr. Vol. IV at 86. Miller said that he followed the defendant's instruction. Miller also testified that, during the second week in November 1981, the defendant called Miller and asked him if he had burned his records. When Miller replied that he had, the defendant told Miller to make sure that Maeras had done the same. A family friend of Miller, Sherry Lisson, testified that the defendant called her in April 1982 and asked her to go into Miller's house to retrieve any records involving Stix. Lisson recounted that the defendant called again a short time after this conversation and asked if she had found any records in Miller's house. Although Lisson had not looked for the records, she told the defendant that she had not found any.

Maeras took the stand at the defendant's trial and stated that, during the second week in November 1981, the defendant called and told him to burn his Stix records. A few minutes after this call, the defendant called Maeras again and said that if Maeras did not burn his records, "there would be a blood trail." Trial Tr. Vol. III at 52. Maeras did not destroy his records.

The government also presented evidence at trial regarding the disbursement of proceeds from the Stix fraud. Government agent John Brissman testified, with the aid of a prepared chart, that 2.8 million dollars of the proceeds could not be accounted for. Through this testimony, the government sought to establish a motive for the defendant's alleged attempts to obstruct justice.

The jury returned a verdict of guilty on two counts of obstructing justice. ¹ In appealing this verdict, the defendant argues that the trial court erred in failing to dismiss the first count of the indictment, which concerned the defendant's communications regarding the destruction of Miller's records. Furthermore, the defendant contends that the evidence used to convict the defendant was derived from the information that the defendant had given the government pursuant to his plea agreement. According to the defendant, the use immunity prescribed by the plea agreement prohibited the government from using this information in a criminal prosecution of the defendant. Finally, the defendant maintains that the entire prosecution constituted a breach of the plea agreement.

Failure to Dismiss Count I

The defendant contends that the district court erred in refusing to dismiss Count I of the indictment, which alleges that the defendant obstructed justice by telling Miller to destroy his Stix records. The defendant points out that Miller testified that he burned his records, at the defendant's bidding, on October 21, 1981. According to the defendant, this testimony indicates that the alleged obstruction of justice had been completed before the November 2 plea agreement was signed, and the agreement bars prosecution of this prior crime. The government replies that the endeavor to obstruct justice by destroying Miller's records continued beyond October 21 and involved follow-up phone calls to Miller and to Lisson in order to determine whether Miller had destroyed all his records. The government maintains that the burning of records on October 21, 1981, is not important to the determination that the defendant still endeavored to bring about the destruction of evidence after this date.

The crime of obstruction of justice is described in 18 U.S.C. Sec. 1503 (1982), in relevant part, as "corruptly, or by threats or force, or by any threatening letter or communication, ... endeavor[ing] to influence, obstruct, or impede the due administration of justice ...." This court recently interpreted this statute in United States v. Berardi, 675 F.2d 894 (7th Cir.1982), where the defendant argued that a count alleging obstruction of justice was duplicitous because it described three episodes in which the defendant was alleged to have furthered his endeavor to influence a witness to testify falsely before the grand jury. This court rejected the defendant's argument, ruling that the statute contemplates "a continuing course of conduct" and that the government's characterization of the facts as a single continuing offense was fair, given that the three alleged acts of obstruction occurred within a relatively short period of time, were committed by one defendant, involved a single witness, and were in furtherance of the defendant's object of influencing the witness not to reveal information to the grand jury.

In the present case, the defendant attempted to influence Miller to destroy records by directing Miller to burn the records in October 1981, by calling Miller in November to ascertain whether the records had in fact been destroyed, and by calling Lisson twice in April 1982 in an attempt to have Lisson remove from Miller's house any records that had not been destroyed. We find that these separate actions of the defendant were in furtherance of the sole object of destroying all Stix records in Miller's possession, and, as in Berardi, these actions constituted a continuing course of conduct. Furthermore, the impossibility of accomplishing the goal of an obstruction of justice does not prevent a prosecution for the endeavor to accomplish the goal. Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 435, 17 L.Ed.2d 394 (1966) (where defendant allegedly employed informer to contact prospective juror, fact that informer never intended to carry out scheme did not preclude defendant's conviction, under 18 U.S.C. Sec. 1503, for endeavoring to bribe juror). Thus, the destruction of Miller's records on October 21 has no bearing on the prosecution of the defendant for continuing his endeavors, after November 2, to have all of Miller's records destroyed. We therefore conclude that the trial court did not err in refusing to dismiss Count I of the indictment.

Admissibility of Evidence

It is the defendant's position that the trial testimony of Brissman and another government agent, James Wehrheim, was based solely on information that the defendant had given under the plea agreement. According to the defendant, since the agreement provided that the defendant's statements to government agents would not be used against him in a criminal prosecution, the trial court committed reversible error in admitting this information into evidence. The government, however, contends that the defendant has waived this argument because the defense counsel never objected to the admission of this information. Indeed, the government tells us that the defendant introduced much of this information during the trial, but withdrew it prior to the deliberations of the jury.

In United States v. Keilly, 445 F.2d 1285 (2d Cir.1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2064, 32 L.Ed.2d 350 (1972), the defendant argued that the federal prosecutor violated the dictates of Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964), by using the fruits of the defendant's immunized state grand jury testimony in connection with the defendant's federal criminal prosecution for bribery. The Second Circuit noted, however, that during the trial, the defense attorney expressly...