U.S. v. Duhon, 76-3998
| Decision Date | 03 January 1978 |
| Docket Number | No. 76-3998,76-3998 |
| Parties | 97 L.R.R.M. (BNA) 2388, 82 Lab.Cas. P 10,274 UNITED STATES of America, Plaintiff-Appellee, v. Harlan DUHON and Donald Ray Lovett, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James A. McPherson, New Orleans, La., for Lovett.
L. Edwin Greer, Shreveport, La., for Duhon.
Edward L. Shaheen, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Donald E. Walter, Sp. Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.
Defendants Harlan Duhon and Donald Lovett appeal from convictions for extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. The charge of extortion arose out of a $5,000 payment allegedly made to the defendants, two labor union officials, by a building contractor who was experiencing labor troubles at his construction site.
On appeal defendants present a number of assignments of error. Both Duhon and Lovett urge that: 1) the evidence presented at trial is insufficient to support a conviction for extortion; 2) the admission of evidence regarding previous labor troubles of the building contractor was prejudicial error; 3) the court's refusal to admit the testimony of a defense witness was erroneous as the witness's testimony would have rebutted the Government's impeachment of a defense witness. Defendant Duhon asserts that: 4) the cross-examination of a defense character witness as to a criminal charge against Duhon subsequent to the offense charged in the present case was improper and prejudicial. Defendant Lovett avers that: 5) the trial court erroneously prohibited the use in cross-examination of the FBI summaries of statements of two prosecution witnesses; 6) the denial of recross-examination of prosecution witness Buckholtz about his hearing problem was error; 7) the trial court's charge to the jury regarding the legality of the picketing at the construction site was irrelevant and prejudicial; 8) the prosecutor's jury argument constituted grounds for mistrial, and 9) the indictment charged an extortion of Buckholtz but the evidence could at most be construed as an extortion of West Brothers, the future owners of the warehouse. Finding all nine contentions without merit, we affirm.
As the circumstances of the alleged $5,000 payment to Duhon and Lovett are of crucial importance in this case, a detailed description of the facts is required. The prosecution's main witness was Eugene Buckholtz, president of Southwest Construction and Paving, Inc. In 1974 his company began construction of a warehouse for West Brothers stores in DeRidder, Louisiana. The project involved some nonunion workers, including a nonunion electrical contractor. Soon after work began on the construction site, pickets from the Southwest Louisiana Building and Construction Trades Council appeared and some of the workers on the site walked off.
Buckholtz stated at trial that at this point he did not know why the pickets had been placed on the job site, and that Jim Barr, president of the local union, did not tell him the reason for the picketing. Buckholtz testified that he was especially worried about the picketing because of the large amount of construction materials scheduled to arrive at the site. In addition to this concern, Buckholtz testified as to a previous experience with labor trouble on a construction site in 1964, when he suffered the destruction of valuable equipment. Edward Brandt of West Brothers stated that delay in construction was particularly worrisome to him because carloads of merchandise were scheduled to be delivered to the warehouse around the anticipated completion date. Brandt and Buckholtz discussed what to do to stop the picketing. Brandt asked Buckholtz if he thought $10,000 would suffice, and Buckholtz replied that $5,000 should be enough.
Barr, the union local leader, set up a meeting to discuss the picketing. On July 16, 1974, a meeting was held between the local labor leaders, Lovett, Duhon, Barr, and Carlock, and the representatives of management, Buckholtz and Brandt. Herman Stewart, the city attorney, was also present. After the meeting proceeded for several minutes it became apparent that group discussion would be fruitless. Buckholtz's inquiries into why the pickets were on his site were answered by Lovett with the statement that the site was "not right." Brandt testified that when he sought a more responsive answer, Lovett replied to the effect that the picketing might expand to include West Brothers' retail stores. Stewart testified that although he might have received the impression that the stores could possibly be picketed, he could not say that a direct statement was made. Stewart remarked that the meeting was going nowhere. Lovett responded that Buckholtz knows what it will take. Stewart then suggested that Buckholtz and Lovett take a walk.
Buckholtz testified that Lovett's tone changed dramatically once they left the meeting. According to Buckholtz, Lovett told him that the "whole thing could be resolved real easy," and put his arm around Buckholtz, who then asked him if $5,000 would take care of it. Lovett responded that everything should be all right and that he wanted Buckholtz to sign a labor contract with him. Buckholtz stated that he told Lovett he did not want to sign the contract because of his nonunion maintenance workers at the paper mill. Lovett said that the contract only concerned the workers at the warehouse construction site. Some further discussion of employee positions at the construction site followed, and then Lovett and Buckholtz returned to the meeting. They told the other representatives at the meeting that their differences had been settled and the pickets would be withdrawn. The pickets were removed in the afternoon and never reappeared. Neither the $5,000 payoff nor the labor contract was mentioned at the meeting, and Buckholtz did not inform Brandt that he had signed a labor agreement with Lovett.
After the meeting Buckholtz told Brandt that he had agreed to pay $5,000. Later that afternoon Buckholtz received a check from West Brothers made out to his company. Buckholtz cashed the check the next day, receiving payment in fifty $100 bills. Buckholtz purchased a hunting camp soon after cashing the West Brothers check, paying for it with $3,500 in cash and two checks. Buckholtz testified that the $3,500 in cash had been accumulated over a few months by writing checks in excess of the amount owed at the grocery store and cashing rental checks from a bowling alley he owned. Buckholtz' wife testified that the $3,500 in cash was mainly $100 bills.
According to Buckholtz, Duhon called him in late July or early August regarding the electrical contractor at the warehouse construction site. Duhon claimed that the contractor had not seen him and become "right." Buckholtz told Duhon to see Lovett. The record indicates that there were four phone calls involving Buckholtz and the Lake Charles Electrical Workers Local, of which Duhon was president: on July 23, two on July 26, and one on August 19, 1974.
Buckholtz claimed that Lovett called him on August 19 and asked him to come to Lake Charles. Buckholtz refused at first, claiming he was too busy. Buckholtz then phoned Brandt and told him he had to deliver the money. After speaking with Brandt, Buckholtz called Lovett back and said he would go to Lake Charles that afternoon.
When Buckholtz arrived in Lake Charles he found Lovett and Duhon together. The three men then went for a ride in Duhon's car. During the ride, Lovett asked whether Buckholtz had brought it. Buckholtz removed the money from his pocket and remarked that he did not know how the payment was expected, and that he had placed the money in five envelopes, expecting that five different trades were going to be bought off. Lovett replied to the effect that no such division was contemplated, and that they would take care of the money. Buckholtz said Duhon had mentioned the problem of the electrical contractor and after the payment Duhon declared that everything was fine, and that the electrical contractor was "okay." Buckholtz considered the payment to have been made to both Lovett and Duhon.
Buckholtz stated that Duhon's car was having transmission trouble on August 19, 1974. The day after Buckholtz's trip to Lake Charles, Duhon's car was taken to a garage for repairs. The mechanic who repaired Duhon's car, Albert Young, testified that the vehicle had been running hot and only preventive maintenance was performed on the transmission. The Government sought to impeach Young's testimony by calling an FBI agent who stated that Young had previously told him that the problem had concerned the transmission's failure to shift correctly.
A. K. Newlin, the electrical contractor, testified that after the construction work had been proceeding for some time after the August 19 payoff, Buckholtz phoned him and said Duhon was complaining that Newlin had not succeeded in getting "right" with him.
The jury obviously resolved the issue of credibility in favor of Mr. Buckholtz. On review we must determine whether the circumstances make belief of Buckholtz's version of the $5,000 payment unreasonable, and whether if Buckholtz's testimony is completely accepted a case of extortion has been proved beyond a reasonable doubt. Of course, the evidence must be reviewed in the light most favorable to the Government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Martinez, 5 Cir., 1977, 555 F.2d 1248. We will first examine the alleged inconsistencies urged by the defendants as rebutting the credibility of Buckholtz's testimony.
Defendants' contention that the failure of Lovett and Duhon explicitly to request money at any point is...
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