U.S. v. Campbell

• Decision Date: 03 August 1982
• Docket Number: Nos. 81-1762,81-1765,s. 81-1762
• Citation: 221 U.S. App. D.C. 367,684 F.2d 141
• Parties: , 11 Fed. R. Evid. Serv. 939 UNITED STATES of America v. Robert H. CAMPBELL, Appellant. UNITED STATES of America v. EXCAVATION CONSTRUCTION, INC., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 141

684 F.2d 141

221 U.S.App.D.C. 367, 11 Fed. R. Evid. Serv. 939

UNITED STATES of America v. Robert H. CAMPBELL, Appellant.

UNITED STATES of America v. EXCAVATION CONSTRUCTION, INC., Appellant.

Nos. 81-1762, 81-1765.

United States Court of Appeals, District of Columbia Circuit.

Argued April 15, 1982.

Decided Aug. 3, 1982.

Appeals from the United States District Court for the District of Columbia (Criminal No. 80-0389).

R. Kenneth Mundy, Washington, D. C., for Robert Campbell, appellant in No. 81-1762.

Jacob A. Stein, Washington, D. C., with whom Robert F. Muse, Washington, D. C., was on brief, for Excavation Const., Inc., appellant in No. 81-1765.

E. Anne McKinsey, Asst. U. S. Atty., Washington, D. C., with whom John A. Terry, John P. Hume, Carol E. Bruce, William J. Birney, Asst. U. S. Attys., and Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, were on brief, for the U. S., appellee in Nos. 81-1762 and 81-1765.

Before TAMM, MIKVA and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

The two cases consolidated here involve appeals from practically every facet of a criminal trial in the district court. ¹ In March 1981, after six weeks of trial and four days of deliberation, the jury found Excavation Construction, Inc. (ECI) guilty of giving an illegal gratuity in violation of 18 U.S.C. § 201(f). The jury also found Judge Robert Campbell guilty of receiving an illegal gratuity in violation of 18 U.S.C. § 201(g). The trial court denied the defendants' post-verdict motions for judgments of acquittal, and imposed sentence. Despite the range and importance of the questions raised by appellants, we affirm.

I. Background

ECI was formed to engage in trucking and construction work. In 1974, when the company obtained three contracts for construction of Metro subway stations, ECI maintained a fleet of 80-85 dumptrucks to conduct dirt-hauling operations. These trucks were subject to the vehicle weight restrictions of the District of Columbia. They could carry a maximum load of 44,000 pounds unless they displayed special use permits, costing $680 apiece, that raised the limit to 65,900 pounds.

ECI purchased 112 special use permits for the year ending June 1974. It purchased only 60 permits for the year ending June 1975, and no permits at all for the next two years. As a result, ECI received hundreds of traffic tickets charging weight violations. These tickets were handled erratically by the Superior Court. ² A number of judges (including some who later testified for the defense) dismissed the tickets or imposed only token fines. One of these judges was Robert Campbell, who had been appointed to the Superior Court bench in 1972. In over 90 percent of the 1,138 tickets involving ECI that were considered by Judge Campbell, the judge suspended sentence. ³

ECI's assistant general manager, Robert Jenkins, had responsibility for supervision of the ECI truck fleet. Jenkins was called before a grand jury in 1978, and at that time testified that he had never delivered anything of value to Judge Campbell. In July 1978, Jenkins discussed his testimony with another ECI employee, Walter "Junior" Jones, and Jones gave similar testimony at his own grand jury appearance. In August 1978, however, the Washington Post reported that ECI employees had assisted in the move of Judge Campbell's household furnishings under the direction of Jones and Jenkins. Jones was then offered immunity in exchange for testimony against Jenkins, and Jenkins was ultimately indicted and convicted of perjury. We affirmed that conviction in United States v. Jenkins, No. 79-2559 (D.C.Cir. Sept. 19, 1980).

In August 1980, the grand jury charged ECI and Judge Campbell in a four-count indictment, alleging conspiracies in violation of 18 U.S.C. § 1962(d) (RICO) and 18 U.S.C. § 371, and the giving and receiving of bribes in violation of 18 U.S.C. § 201(b) and (c). The indictment charged 16 separate instances of bribery. Twelve of these were payments of cash, starting as early as 1966 when Campbell was an Assistant Corporation Counsel. The other four instances were gifts to Judge Campbell of three loads of topsoil, a garden cultivator, several cases of liquor, and the move of his household belongings.

Problems beset the prosecution almost immediately; even after a superseding indictment was filed, the government acted repeatedly to narrow the charges. ⁴ By the time the case went to the jury, the bribery scheme alleged in Count III of the indictment was confined to the move of household goods in August 1975 and five payments of cash between January 1976 and February 1977. At the conclusion of testimony, however, the trial court also agreed to instruct the jury of the lesser included offenses of giving and receiving an illegal gratuity in the third and fourth counts of the indictment. ⁵

The jury found the defendants not guilty of conspiracy on Counts I and II. By way of a special verdict form, the jury also acquitted the defendants of bribery and found that there was no illegal gratuity given or received in connection with any of the five cash payments alleged. The jury did find each defendant guilty in connection with the 1975 move of the household goods-ECI for having given an illegal gratuity in the form of that move, and Judge Campbell for having received that gratuity. In June 1981, the trial court fined ECI $10,000, the maximum penalty authorized under the statute, and sentenced Judge Campbell to serve a term of imprisonment of three months to two years.

II. Issues Raised on Appeal

The defendants challenge the sufficiency of the evidence to support their convictions, the admission of hearsay evidence, the trial court's instructions to the jury, the alleged misconduct of the jury in reaching a verdict, and the sentencing decision of the trial court. We discuss each of these arguments separately.

A. Sufficiency of the Evidence

The standards for evaluating the sufficiency of the evidence supporting a guilty conviction are well established. We must view the evidence in the light most favorable to the government and draw all justifiable factual inferences from it. The verdict will be overturned only if a reasonable jury could not accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. See, e.g., United States v. Staten, 581 F.2d 878, 882 (D.C.Cir.1978); Curley v. United States, 160 F.2d 229 (D.C.Cir.), cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).

Judge Campbell's defense sought to negate the existence of criminal intent. It emphasized that Judge Campbell gave $60 to the three ECI employees who assisted during the five-hour move, and that Judge Campbell sought to pay their supervisor, Jones, as well. When Jones refused to take any money for his own time or to let Judge Campbell pay for a truck that Jones had already rented, Judge Campbell "was confronted, not of his own volition or choice, with a gratuity ... of such a nature that he could not give it back." Brief for Appellant Campbell at 12.

Although this version of events could be believed, there was clearly sufficient evidence from which the jury could conclude beyond a reasonable doubt that it was not so. There was credible evidence to suggest that Jenkins arranged the move pursuant to a meeting with Judge Campbell, that the $60 was intended as a tip rather than as payment for the value of the services given, and that Judge Campbell knew the movers' assistance was a gratuity rendered for or because of his official acts. ⁶ It was for the jury to resolve the question of Judge Campbell's intent based on this evidence, and we find no occasion to disturb its verdict.

B. Evidentiary Issues

Jenkins was the government's principal witness at the trial. He had been convicted of three counts of making a false declaration before a grand jury in November 1979, and sentenced the following month to three years probation and a fine of $5,000. Jenkins was then given immunity from further prosecution other than for perjury, and was ordered to testify before the grand jury. In conversations with government prosecutors in February and April, 1980, Jenkins stated that he made numerous cash payments to Judge Campbell between 1973 and 1977. He also discussed other favors that had been given to the judge, including assistance during the household move.

During the trial a year later, however, Jenkins testified that he no longer remembered certain details of these transactions. He was not formally declared a hostile witness, but the trial judge characterized Jenkins as a "reluctant" witness from whom "the prosecutor literally has to pull every statement," Tr. 1020-21, "one of the most uncooperative witnesses I have ever seen," Tr. 1137, and a "stone wall." Tr. 1102. In particular, Jenkins testified that his first payment to Judge Campbell occurred after Campbell became a judge, but stated that he could not recall the year in which payment was made. In an effort to refresh Jenkin's memory, he was shown notes made by a prosecutor during an interview in February 1980. Jenkins' recollection was not refreshed, however, and the prosecution then sought to introduce the substance of the notes as Jenkins' past recollection recorded. Defense objections were overruled, and appellants now urge that this evidence was inadmissible as hearsay.

Although the use of prior statements of witnesses as substantive evidence raises one of the thornier issues in the law of evidence, ⁷ we cannot say that any error here was prejudicial. Jenkins testified at trial from his present recollection concerning roughly a dozen cash payments to Judge Campbell and the provision of other favors, and the defense was not deprived of effective cross-examination as to these events. Jenkins was on the stand for six days of the trial, and any erroneous ruling as to the admissibility of...