U.S. v. Garver

• Decision Date: 16 January 1987
• Docket Number: No. 85-2370,85-2371,85-2370
• Citation: 809 F.2d 1291
• Parties: 22 Fed. R. Evid. Serv. 464 UNITED STATES of America, Plaintiff-Appellee, v. Fred W. GARVER, Larry R. Mohr, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1291

809 F.2d 1291

22 Fed. R. Evid. Serv. 464

UNITED STATES of America, Plaintiff-Appellee, v. Fred W. GARVER, Larry R. Mohr, Defendants-Appellants.

No. 85-2370, 85-2371.

United States Court of Appeals Seventh Circuit.

Argued June 11, 1986.

Decided Jan. 15, 1987.

As Amended Jan. 16, 1987.

James H. Voyles, Ober, Symms, Cardwell, Voyles, & Zahn, Don A. Tabbert, Tabbert & Capehart, Indianapolis, Ind., for plaintiff-appellee.

Bradley L. Williams, Acting U.S. Atty., U.S. Atty's Office, Indianapolis, Ind., for defendants-appellants.

Before WOOD, COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.

COFFEY, Circuit Judge.

Appellants Fred W. Garver and Larry R. Mohr appeal their convictions for conspiracy to commit mail fraud, 18 U.S.C. Sec. 371, mail fraud, 18 U.S.C. Sec. 1341, and for violating the RICO statute, 18 U.S.C. Sec. 1962. Garver also appeals his concurrent three-year sentences for mail fraud and conspiracy to commit mail fraud as well as his sentence to a concurrent six year term of imprisonment pursuant to 18 U.S.C. Sec. 1963(a) for violation of the RICO statute. We affirm.

I

This case arose out of the efforts of the defendants to persuade local tax officials to reduce the property tax assessments on two parcels of land in downtown Indianapolis, Indiana, known as the Merchants Plaza and the Maryland Street Garage. The owner of the Merchants Plaza, the PRT Joint Venture, became concerned about its property assessment when Center Township Assessor James Cunningham ¹ issued a Notice of Assessment for the year 1977 in the amount of $10,723,730.00, prepared by the Chief Deputy Assessor Charles Rawlings. Since the assessment was considerably higher than PRT had anticipated, they appealed the assessment to the Marion County Board of Review.

William Moore, a member of the executive committee responsible for the operation of the PRT Joint Venture (PRT), hired attorney Kent Howard, a partner in the Indianapolis law firm of Barnes, Hickam, Pantzer & Boyd, and the defendant Garver to represent the Merchants Plaza in the appeal of its 1977 assessment and in any future assessment proceedings involving PRT properties. PRT hired Howard and Garver on a contingency fee basis after agreeing that their legal fee would be determined by the amount that they were able to persuade the local tax officials to reduce the Merchant Plaza property value assessment. PRT also hired defendant Mohr and Claude Magnuson to assist Garver and Howard.

In July 1978, Deputy Assessor Rawlings prepared and issued another Notice of Assessment for Merchants Plaza, this time for the 1978 tax year, setting the value of the complex at $10,985,300. Garver, on behalf of PRT, appealed this assessment to the Marion County Board of Review. The hearings on the 1977 and 1978 Merchants Plaza assessments were consolidated and scheduled to be heard on September 7, 1978 by the Marion County Board of Review.

Prior to the September hearing, Claude Magnuson contacted his friend Frank Corsaro, the Marion County Assessor and President of the Marion County Board of Review. Because Magnuson wanted Corsaro to aid in reducing the Merchants Plaza assessments, Magnuson offered Corsaro $5,000 for the campaign of Henry Bayt, a relative of Corsaro who was running for the position of Center Township Assessor. Corsaro told Magnuson that Bayt did not need the money but that Corsaro could use the money since he was about to open a used car dealership. Approximately one week before the September hearing, Corsaro and Magnuson met again, and Magnuson gave Corsaro an envelope containing $3,000. As Magnuson handed the envelope to Corsaro, he told Corsaro that he would "get the other to you as soon as I can, as soon as we get it."

In May, 1978, Deputy Assessor Rawlings contacted Mohr to determine whether Mohr would be interested in purchasing a tax consulting firm from the widow of one of Rawling's friends. About two weeks later, Rawlings, Garver, and Mohr met for lunch and decided that they would form their own tax consulting firm. Thereafter Garver, Mohr, and Rawlings met on a number of occasions to discuss the establishment of their firm and in August of 1978, at one of their meetings, Garver told Rawlings that he and Mohr were representing Merchants Plaza in its property tax appeal before the Marion County Board of Review. Garver and Mohr did not want Rawlings' employer, James Cunningham, and the Center Township Assessor to voice any objections if the Marion County Board of Review lowered Cunningham's 1977 assessment of Merchants Plaza. They were interested in having Rawlings convince Cunningham neither to object to nor appeal any decision of the Marion County Board of Review lowering Cunningham's assessment of Merchants Plaza.

On September 7, 1978, the day of the Marion County Board of Review hearing, Garver gave Deputy Assessor Rawlings a cashier's check drawn on the Carmel Bank and Trust Company for $5,000. Mohr was at that time chairman of the board of the Carmel Bank and Trust. Garver had Rawlings sign a note to the Carmel Bank and Trust, and when Rawlings asked "why the note?" Garver responded that "we're going to handle it this way." Rawlings called Mohr after talking with Garver and inquired as to why he had to sign a note. Mohr advised Rawlings to sign the note at the bank and not worry about it. Rawlings cashed the check that day and gave Cunningham $2,500, informing him that Garver and Mohr were his partners and suggesting to Cunningham that he not appeal the Marion County Board of Review's decision on the Merchants Plaza assessment to the State Board of Tax Commissioners as he was entitled to do under Indiana Law.

The Marion County Board of Review issued its decision to reduce the assessments on Merchants Plaza on September 18, 1978. The decision of the board fails to delineate the vote of each board member, but the record is clear that Cunningham did not appeal the decision. Subsequently, Claude Magnuson paid Marion County Assessor Corsaro the remaining $2,000 of his $5,000 payment. The reduction in the Merchants Plaza assessment generated a legal fee in the sum of $232,000 with Howard, Garver, Mohr, and Magnuson dividing the fee.

In October, 1978, Rawlings prepared the first property value assessment on a new parking garage owned by the Maryland Street Garage Corporation. The Notice of Assessment was issued October 16, 1978 and set the assessed value of the garage at $762,850.00. When Mohr learned that Rawlings made an assessment of the garage, he stated to Rawlings "I may be able to get these people as a client." Mohr instructed Rawlings not to change anything until he was assured that "we" had a client. Mohr explained that there was money in this for both of them.

When C. Perry Griffith, the president of the Maryland Street Garage Corporation, received the Notice of Assessment, he contacted attorney Lester Irons seeking advice on how to obtain a reduction in the assessed valuation of the Maryland Street Garage Corporation's garage. Irons consulted Howard, who worked for the same law firm as Irons (Barns, Hickam, Pantzer & Boyd). Irons and Howard conferred with Griffith, and Griffith at this time agreed to turn the matter over to Midwest Appraisers, Inc., the new tax consulting firm that Garver, Mohr and Rawlings were in the process of forming. Howard referred the matter to Garver and Mohr, and Mohr subsequently called Rawlings advising him that Mohr would be representing the Maryland Street Garage Corporation. Mohr suggested to Rawlings that he reduce the assessment. On November 10, 1978, Rawlings prepared and sent a new Notice of Assessment lowering the assessed value of the garage. This second assessment notice was improper since under the Indiana Assessment Act, once an assessment has been issued by a township assessor in Indiana it is subject to change only through appeal. In order to disguise this impropriety, Rawlings testified that he altered the Center Township Assessor's permanent records, erasing the figures on the assessor's permanent record card and inscribing new ones.

On November 20, 1978, Rawlings signed the Articles of Incorporation for Midwest Appraisers, Inc., a tax consulting firm consisting of Rawlings, Mohr, and Garver. After the Maryland Street Garage assessment was reduced, Lester Irons wrote a letter to Griffith forwarding a bill from Garver for services rendered in obtaining a reduction in the Maryland Street Garage's assessment. Irons stated in the letter that Griffith's Company should issue a check to Garver in the amount of $9,202 and that Irons would see that the check was delivered to Mohr. Irons stated that it was his understanding that only Garver and Mohr had worked on this project. Garver, Mohr, and Rawlings split the $9,202 payment.

On January 1, 1979, Henry Bayt became the Center Township Assessor and hired Frank Corsaro as his Chief Reassessment Deputy. Bayt directed Corsaro to prepare and send a notice of a proposed change of assessment for Merchants Plaza increasing the assessed value of the property from $8,040,470.00 to $28,453,930.00. In letters dated October 18, 1979 and October 29, 1979, PRT executive committee member Moore, and PRT's attorney, Kent Howard, confirmed that "Midwest Appraisers" would receive a contingency fee for their services in securing a reduction in the assessed value of Merchants Plaza. Later, Bayt issued an official Notice of Assessment for Merchants Plaza establishing an assessed value of $28,453,930 for the property. On November 8, 1979, Garver, Magnuson, Bayt, Corsaro, and Moore met at Bayt's office to discuss the latest Merchants Plaza assessment. The next day, Magnuson returned to Bayt's office to reassert PRT's position that the new Merchants Plaza assessment should be reduced and stated to Bayt: "I hope you can make it right for me and I will make it right for you."

On November 12, 1979, Bayt issued a second Notice of Assessment for Merchants Plaza lowering...