U.S. v. Brown

• Decision Date: 20 August 1976
• Docket Number: No. 75-1766,75-1766
• Citation: 540 F.2d 364
• Parties: UNITED STATES of America, Appellee, v. Kenneth O. BROWN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 364

540 F.2d 364

UNITED STATES of America, Appellee, v. Kenneth O. BROWN, Appellant.

No. 75-1766.

United States Court of Appeals,

Eighth Circuit.

Submitted March 10, 1976.

Decided July 28, 1976.

Rehearing and Rehearing En Banc Denied Aug. 20, 1976.

Alan G. Kimbrell, St. Louis, Mo., for appellant; Mortimer A. Rosecan, St. Louis, Mo., on brief.

Terry I. Adelman, Asst. U. S. Atty., St. Louis, Mo., for appellee; Donald J. Stohr (former U. S. Atty., effective May 15th, Barry A. Short, U. S. Atty.), St. Louis, Mo., David M. Rosen, St. Louis, Mo., on brief.

Before GIBSON, Chief Judge, HEANEY and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Kenneth O. Brown appeals from his jury conviction on one count of interference with interstate commerce by extortion in violation of 18 U.S.C. § 1951 and six counts of mail fraud in violation of 18 U.S.C. § 1341. Concurrent sentences of three years imprisonment on each count were imposed. The issues presented by this appeal draw our attention to the circumstances under which the Hobbs Act and mail fraud statute may properly be employed to reach acts of self-dealing and faithlessness to public trust and responsibility by municipal officers.

The evidence upon which the government relied to obtain a conviction was as follows:

Brown was the Building Commissioner of the City of Saint Louis, Missouri, from 1961 to 1974. As administrator of the city building code, the Office of the Building Commissioner regulated construction contractors through a wide range of approval and inspection requirements. The office also maintained a listing of contractors who had qualified to perform building demolition work for the city by meeting ordinance requirements for license, bond, and insurance. Among his responsibilities, Brown approved demolition contractors as qualified to bid on city jobs; selected the contractors to whom bids on each demolition project were sent; opened the returned bids; approved the low bidder as qualified for the work; sent the award letter to the successful bidder; and approved payments to the contractor after completion of the project. Testimony indicated that because of the discretion and power of the office and the complexity of the rules it administered, contractors sought to maintain the best possible relationships with its personnel.

From 1966 to 1970 John Mincher and Howard Humphreys were the principal owners of Reliance Construction Company, a general contracting firm based in Florissant, Missouri. Reliance received raw materials through interstate commerce and engaged in construction projects outside of the State of Missouri. Humphreys was also employed as construction manager for the Mansion House Center, a large housing complex in Saint Louis. Mincher and Humphreys were acquaintances of Brown and dined with him about twice monthly.

Alma Rednour was a female acquaintance and intimate of Brown from 1965 until late 1972. In 1966, Rednour was looking for a new apartment and Brown asked her if she would like a residence in Mansion House. When she replied that she could not afford the rental payments, Brown told her that "it would be taken care of".

In early Fall, 1966, shortly after Reliance was formed, Brown asked Humphreys if he could obtain a "break" on a Mansion House apartment for Rednour. Humphreys arranged for an apartment and personally paid the rent from his own funds until February, 1967, at which time he informed Brown that his diminished financial status precluded further payments.

In March, 1967, Brown met with Mincher and Humphreys and suggested that Reliance enter the demolition contracting business. Brown stated that, as Building Commissioner, he handled the bidding on the city's demolition work and named the three contractors to whom invitations to bids would be sent on each project. Brown mentioned that he needed funds for an apartment rental at Mansion House, and that Reliance could serve as a conduit for those payments through profits from demolition business received from the city. As outlined by Brown, the actual demolition work would not be performed by Reliance, but by minority contractor Richard Thomas, who operated on a non-union basis and would thus work at a lower price than that actually paid by the city. Portions of this margin of profit would be used to pay Mansion House for rental of Rednour's apartment. Reliance would camouflage the payments by showing them on financial records as rent on its field office at Mansion House, which was in fact maintained rent-free because of services rendered to the apartment complex.

Mincher and Humphreys agreed to this proposition. According to their testimony, they feared that if they did not go along with Brown's scheme their general construction contracting would be subject to such adverse consequences by the Office of the Building Commissioner as administrative delays, denial of permit applications, difficulty in inspections, and other forms of harassment. The extent of Brown's actual ability to cause such consequences was hotly disputed at trial; the belief of Humphreys and Mincher that such consequences could occur was not disputed.

Reliance applied for and was placed on the list of approved demolition contractors and, with Thomas's assistance, began to receive and perform demolition contracts for the City of Saint Louis. Rental payments to Mansion House were mailed and camouflaged according to Brown's plan. Shortly after Reliance obtained its first demolition contracts, a business agent of the Teamsters Union informed Mincher that the use of non-union drivers by Thomas should be discontinued. When Brown's assurances of a solution failed to materialize and Teamster "threats" continued, Mincher decided to get out of the demolition business in order to prevent harm to Reliance's general contracting business and so informed Brown in late 1967. Brown met with Humphreys and Mincher and suggested that they form a new corporation to act for Reliance in the demolition business so that the unions would not know that Reliance was involved. Decco, Inc. was then formed by Mincher and Humphreys to replace Reliance in the demolition business. Decco at no time engaged in the demolition business outside the State of Missouri. Although Decco received the payments on its demolition contracts for the City, Reliance continued to mail the rental payments to Mansion House.

Humphreys and Mincher testified that, subsequent to their agreement to pay Rednour's rent, they began to receive better service from the Office of the Building Commissioner. In late 1970, however, they informed Brown that Decco was withdrawing from the demolition business. Mincher sold out to Humphreys and left Reliance; Decco was dissolved. In March 1971, the rental payments were terminated by Reliance. Since late 1967 approximately $11,500 had been paid by Reliance for the apartment. Brown did not at any time disclose his interest in the Reliance and Decco demolition contracts to his superiors. ¹

Brown was indicted under 18 U.S.C. § 1951 for interference in interstate commerce by extortion of the rental payments from Reliance; and under 18 U.S.C. § 1341 on seven counts of mail fraud four counts for causing the mailing of the rental checks by Reliance to Mansion House, and three counts for mailing the awards of demolition contracts to Reliance and Decco.

After full jury trial, Brown was convicted on the extortion count and all but one of the counts of mail fraud. ² Brown appeals, asserting several claims of error, including a challenge to the sufficiency of the evidence. Upon a full review of the record, we affirm the judgment of conviction.

I. EXTORTION

A. Sufficiency of the Indictment

Count One of the indictment charged an extortionate scheme in violation of the Hobbs Act, 18 U.S.C. § 1951. A motion to dismiss the indictment was filed by Brown, including a challenge to Count One as insufficient and vague. A motion for a bill of particulars was concurrently filed pursuant to Fed.R.Crim.P. 7(f). In response to these motions, the government invited the attention of Brown to the totality of the indictment, contending that sufficient detail was present to enable adequate preparation of the defense. The District Court ³ denied both the motion to dismiss and the motion for a bill of particulars. Brown now contends that the District Court erred in not finding the indictment to be defective and compounded this error by refusing a bill of particulars.

Fed.R.Crim.P. 7(c)(1) provides that:

(T)he indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain * * * any other matter not necessary to such statement. * * *

Brown's argument on appeal is that he was misled by the indictment into thinking that extortion through "fear of financial and economic injury" and resulting unlawful effect upon commerce charged in the indictment related to the demolition business rather than to the construction business of Reliance. ⁴

An indictment must set forth in factual terms the elements of the offense sought to be charged. It must sufficiently apprise the defendant of what he must be prepared to meet, and its generality must not endanger his constitutional guarantee against double jeopardy. United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953); United States v. Glup, 482 F.2d 1288, 1289-90 (8th Cir. 1973); United States v. Palmiotti, 254 F.2d 491, 495 (2d Cir. 1958). The indictment in this case incorporates the three elements of an offense under 18 U.S.C. § 1951: (1) that the defendant induced his victims to part with property; (2) that he did so by extortionate means; and (3) that interstate commerce was thereby affected. The indictment establishes a time frame and identifies the victims, the property extorted, the methods of extortion, and the nature of the commerce affected. We think that appellant's argument that he...