U.S. v. Duvall

• Citation: 846 F.2d 966
• Decision Date: 24 May 1988
• Docket Number: No. 87-4663,87-4663
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmie T. DUVALL and Alfred Grant Revette, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 966

846 F.2d 966

UNITED STATES of America, Plaintiff-Appellee, v. Jimmie T. DUVALL and Alfred Grant Revette, Defendants-Appellants.

No. 87-4663.

United States Court of Appeals, Fifth Circuit.

May 24, 1988.

Alvin M. Binder, Jackson, Miss., Daniel P. Self, Jr., Meridian, Miss., for defendants-appellants.

Ruth R. Harris, Richard T. Starrett, Asst. U.S. Attys., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before REAVLEY, KING and SMITH, Circuit Judges.

PER CURIAM:

Two county officials appeal their convictions for bribery and conspiracy because they took kickbacks in purchases of county materials. They challenge several aspects of their trial, including the omission of a particular jury instruction, the admission into evidence of the government's tape recordings, the sufficiency of the evidence to sustain the jury's verdict, and a supplemental instruction given during jury deliberations. We find no reversible error and affirm the convictions.

I.

A federal grand jury in Mississippi indicted Jimmie T. Duvall ("Duvall") and Alfred Grant Revette ("Revette") in April 1987 for conspiracy, bribery, mail fraud, extortion, and aiding and abetting an offense against the United States. ¹ On July 30, 1987, following eight days of trial in the United States District Court for the Southern District of Mississippi, a jury convicted each defendant of two offenses, finding both defendants guilty of conspiracy as alleged in count one of the indictment and bribery as alleged in count two against Duvall and count three against Revette. The jury acquitted the defendants of all remaining charges in the seventeen-count indictment. The district court denied a motion for a judgment of acquittal or, alternatively, a new trial, and this timely appeal followed.

The facts, briefly stated in the light most favorable to the government, are as follows. ² Duvall and Revette were county supervisors in Wayne County, Mississippi, with the authority to purchase materials for the county's maintenance of roads and bridges. Duvall was responsible for the third district; Revette controlled the first district. While performing their duties as county supervisors, both engaged in fraudulent sales transactions with corrupt vendors. The illegal practices included accepting cash kickbacks, or percentage payments, on purchases from the vendors and "busting" invoices, or billing the county for undelivered goods and splitting the purchase price with the vendors. Between May 1983 and June 1986, Duvall received $955 in illegal payments from Ray Davis ("Davis"), who owned and operated Davis Chemicals. From September 1984 through April 1986, Revette received $1730 from Davis.

In August 1984, John Burgess ("Burgess"), the owner of Mid-State Pipe and Supply Company ("Mid-State"), reported the illegal practices of county supervisors in Mississippi to the Federal Bureau of Investigation and agreed to cooperate in an operation to uncover dishonest officials. An undercover agent, Jerry King ("King"), began an investigation posing as a Mid-State salesman named Jerry Jacobs. Acting on information obtained through Burgess from a corrupt county supervisor named Buddy Crocker ("Crocker"), King contacted Revette in February 1985 to solicit his business. In their first meeting on February 28, King informed Revette that Revette would receive twelve percent of the price on each order placed with Mid-State; Revette expressed interest in dealing with King and requested copies of King's price list for other county supervisors. On March 8, Revette introduced King to other supervisors, including Duvall. During this meeting, Revette told Duvall that King "will help us out," and after King repeated his offer to pay kickbacks, both supervisors indicated that they agreed with his proposal.

On March 20, 1985, Revette first ordered supplies from Mid-State and informed King that Duvall would soon call to place an order as well. King paid Revette a $100 kickback when Revette signed Mid-State's invoice for the order about a week later, and on April 17, Revette again ordered goods from King and received $100. On the latter occasion, King met Davis and saw him give money to Revette; Revette told King that the money was for Duvall. Two days later, King met with Davis to discuss working together as salesmen to sell their products, and without realizing King's true identity, Davis confirmed that he made payments to both Duvall and Revette. On April 29, Duvall placed his first order with King and agreed to King's suggestion that they "bust" the invoice; King paid Duvall $200, his share of the undelivered goods, for approving the fraudulent invoice.

During the course of more than a year, Duvall and Revette met repeatedly with King to discuss fraudulent schemes and transact illegal sales. At times, the defendants placed orders for each other, relayed money to each other, purported to speak for each other, and agreed to discuss particular moneymaking schemes with other county supervisors. On one occasion, Duvall and Revette met with King together, and each completed a busted-invoice transaction with King during the meeting. For each illegal transaction, Mid-State submitted an invoice to Wayne County and received payment from the county for the full amount of the invoice, even though Mid-State never delivered some materials according to King's agreement with the defendants. Duvall received $910 from King in six transactions, and Revette received $850 from King in eight transactions.

At trial, the government introduced tape recordings of King's conversations with Duvall and Revette accompanied by transcripts of the recordings, which show the defendants agreeing to King's illegal proposals, discussing how to structure their illegal transactions, and directing him to submit invoices for undelivered goods. The witnesses testifying against the defendants included King, Davis, and the county supervisors' purchase clerk, who verified documentation of the fraudulent sales. Duvall and Revette admitted their dealings with King but asserted the defense of entrapment; they denied Davis' accusations that he also paid them kickbacks. Both defendants testified at trial, and Burgess testified as the defendants' adverse witness.

On appeal, Duvall and Revette raise essentially four points of error: ³ (1) the district court wrongly refused to instruct the jury concerning a "gratuity" defense; (2) the tape recordings should have been excluded; (3) there was insufficient evidence to support their conspiracy or bribery convictions; and (4) the district court improperly responded to a question from the jury during its deliberations. ⁴ We further explain the defendants' position and address each allegation in turn below.

II.

A. The Jury Instructions

The defendants assert that the district court erred by refusing to give their proposed jury instruction which read: "The Court instructs the jury that merely receiving unsolicited gifts or gratuities does not constitute the offenses charged in the indictment." They rely on United States v. Washington, 688 F.2d 953 (5th Cir.1982), where we held that a county supervisor charged with mail fraud was entitled to a similar instruction. In that case, the indictment alleged that the defendant devised a scheme to defraud the county by agreeing to purchase supplies at inflated prices in return for receiving bribes and kickbacks from the sellers. See id. at 955. The defendant denied accepting bribes and asserted instead that he received unsolicited gifts by mail from an unknown source. He testified at trial that he was uneducated, that he had sometimes received gifts from former customers by mail in his prior occupation, that he saw nothing unusual about receiving unsolicited gifts from business associates, and that he understood that anyone could legally accept unsolicited merchandise received by mail without obligation. We reasoned that because the government's allegations required proof of a scheme involving bribes--as opposed to gratuities--merely receiving unsolicited gifts would not constitute the offense charged. See id. at 957-58. We concluded that the instruction was a correct statement of law and had evidentiary support. See id. at 958. Thus we reversed the defendant's conviction because the trial court refused the instruction. Duvall and Revette contend that Washington controls this case; their argument is misguided and overly simplistic.

At the outset, the defendants incorrectly argue that we apply a per se rule of reversal in reviewing the district court's action. True, the court in Washington stated that a criminal defendant is entitled to a separate jury instruction on a theory of defense with legal and evidentiary foundation and that to refuse the instruction is reversible error. See id. Moreover, in reviewing the sufficiency of the evidence underlying a legal defense, "we need only search for any evidence" to support the defense, " 'regardless of how weak, inconsistent, or dubious the evidence of [the defense] may have been.' " United States v. Curry, 681 F.2d 406, 413, 416 (5th Cir.1982) (emphasis in original) (quoting United States v. Goss, 650 F.2d 1336, 1345 (5th Cir. Unit A 1981)). However, our more recent cases clarify the applicable standard of review and expressly reject the per se approach suggested by statements in Washington when taken out of context. ⁵ See United States v. Rubio, 834 F.2d 442, 446-47 (5th Cir.1987); United States v. Hunt, 794 F.2d 1095, 1097-98 (5th Cir.1986); United States v. Gray, 751 F.2d 733, 735-36 (5th Cir.1985); United States v. Fooladi, 746 F.2d 1027, 1030-31 (5th Cir.1984).

The issue that we must decide is whether the district court abused its discretion by refusing the defendants' proposed jury instruction in this case. See Rubio, 834 F.2d at 450; Hunt, 794 F.2d at 1097. In reviewing the district court's decision, we afford the...