U.S. v. Graves

Citation5 F.3d 1546
Decision Date20 October 1993
Docket NumberNo. 92-9508,92-9508
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert GRAVES, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Karl J. Koch, Lewis Unglesby, Sr., Baton Rouge, LA, for defendant-appellant.

Richard B. Launey, Asst. U.S. Atty., P. Raymond Lamonica, U.S. Atty., Baton Rouge, LA, for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER, 1 District Judge.

BARKSDALE, Circuit Judge:

The critical issue before us turns on a party being required to object, or make an offer of proof, when the subject covered by a motion in limine arises at trial, in order to preserve the issue for appeal. This and several other evidentiary questions being the principal matters raised on appeal, Robert Graves challenges his conviction and sentence for conspiracy to defraud the United States and Internal Revenue Service, in violation of 18 U.S.C. Sec. 371. We AFFIRM.

I.

Graves was the Secretary of the Louisiana Department of Transportation and Development (DOTD) from 1984 to 1988. In late 1986, he contacted Joseph Palermo, a member of the State Mineral Board and businessman in Louisiana. The two had known each other since 1984; Palermo considered Graves a "very good friend".

Graves called on Palermo for help, telling him that he (Graves) had received income from a source he did not wish to reveal to the Internal Revenue Service. Graves stated that he owned property in Mississippi, and suggested that it might be used to help account for the income.

Joseph Palermo did not wish to become directly involved because of his position on the Mineral Board; thus, he asked his brother, Myron Palermo, to help Graves. Myron Palermo told Joseph Palermo, and later told Graves, that he would be willing to provide Graves an apparent source for the income.

The specific scheme to which the Palermos and Graves agreed was executed as follows: Backdated documents were created to show a sale of Graves' Mississippi property to Myron Palermo's company. Graves created backdated receipts for some $40,000 in payments towards the alleged purchase price. The receipts showed Myron Palermo's company as the party making the payments.

Two years later, when Myron Palermo was arrested for attempted distribution of marijuana, authorities recovered the false documents during a search of his business premises. Within a few days of the arrest, Joseph Palermo informed Graves about it and the document seizure. As agreed, they met to discuss how to "get[ ] the property back" in Graves' name. Graves then met with Myron Palermo, and instructed him to write a letter stating that he could not make the payments on the property and would be willing to return it to Graves. Graves also instructed him to execute a quitclaim deed returning the property to Graves. Myron Palermo did both, testifying that these documents were created so "it would look like it was a real transaction, which it wasn't."

Graves was indicted for both conspiracy to defraud the United States and IRS, in violation of 18 U.S.C. Sec. 371, and making a false statement to the IRS (concerning different funds), in violation of 26 U.S.C. Sec. 7206(1). He was convicted by a jury of the former and acquitted on the latter. His sentence included 21 months incarceration.

II.
A.

Graves bases error on the denial of his motion to strike language from the indictment, which suggested that he was selling his influence as a governmental official. He asserts that, instead of being tried as charged, he was tried for official corruption. Specifically he contends that the conspiracy count should not have identified him as the Secretary of DOTD, and that the false statement count should not have made reference to him selling his influence. 2 Similarly, he maintains that the district court should not have admitted evidence that he was engaged in official misconduct.

1.

The denial of a motion to strike is reviewed only for abuse of discretion. United States v. Bullock, 451 F.2d 884, 888 (5th Cir.1971). For language to be struck from an indictment, it must be irrelevant, inflammatory, and prejudicial. Id.

Graves' contention that the reference to his official position in the conspiracy count should have been struck is without merit. First, the language is relevant to the identity of the defendant charged in the indictment. SeeUnited States v. Reeves, 892 F.2d 1223, 1228 (5th Cir.1990) (recognizing that the "identity of the participants" in a conspiracy is relevant). Second, his occupation was relevant to prove the motive of the conspirators. Specifically, the Palermos knew of Graves' position, and Graves advised Myron Palermo that he should call him (Graves) if "[Graves] could ever help me in any way". Evidence suggesting a motive for a crime is relevant. See, e.g.,United States v. Mennuti, 679 F.2d 1032, 1037 (2nd Cir.1982). (Nor is the language inflammatory or prejudicial.)

Likewise, we find no abuse of discretion concerning the contested language in the false statement count. The government was required to prove that Graves knew that his income exceeded that which he reported. See 26 U.S.C. Sec. 7206(1). The specific allegation made in support of the false statement charge was that Graves peddled influence for cash. Of course, such an allegation may be somewhat sensational; but, that does not make it irrelevant.

2.

For the foregoing reasons, we also find no error in the admission of evidence on whether Graves was receiving unreported income through official misconduct.

B.

Graves next asserts that the district court improperly excluded evidence he sought to introduce to rebut the false statement charge. To prove this charge, the government alleged that a payment of $10,000 by Joseph Palermo to Graves was unreported income. Joseph Palermo testified that the money was given to Graves for his help in the DOTD's purchase of land from Joseph Palermo. 3 And, a DOTD employee testified that Graves' actions in that transaction were not routine.

Graves presented evidence that he had done nothing to influence the acquisition; in fact, a defense witness testified that Graves' actions regarding the transaction were not unusual. Apparently, the jury credited Graves' explanation; he was acquitted on the false statement charge. Now, however, Graves contends that the trial court erred in excluding evidence he sought to introduce regarding the price paid by the State for other parcels of property. Through such evidence, Graves hoped to show that the price paid by the State to Joseph Palermo was not unusually high.

Insofar as Graves was acquitted on the false statement charge, even assuming error, it must be deemed harmless. See Fed.R.Crim.P. 52(a). In addition, we find no abuse of discretion in the district court's determination under Fed.R.Evid. 403 to exclude evidence on a plethora of land acquisitions by the State. See Fed.R.Evid. 103 ("[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected"); United States v. Ackal, 706 F.2d 523, 532 (5th Cir.1983) (essaying abuse of discretion standard of review for limitations on the introduction of evidence); see alsoUnited States v. Quintero, 872 F.2d 107, 113 (5th Cir.1989) (noting broad discretion of trial court in determining admissibility of evidence), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990). Such evidence would have unduly consumed time and risked jury confusion on an issue of little, if any, relevance. It matters not whether Joseph Palermo received special treatment. What is relevant is whether he paid Graves in an effort to procure it.

C.

Graves next challenges the district court's allowing a portion of the government's plea agreement with Myron Palermo to be withheld from the jury. Before trial, the government filed a motion in limine to exclude the portion providing that Palermo would be subject to a polygraph examination. Graves unsuccessfully contested the motion, contending that such a limitation would be "contrary to the established standards of cross-examination and confrontation". At trial, a redacted version of the plea agreement was introduced; the polygraph clause was excluded.

According to the government, "[n]o polygraph examination of Myron Palermo was ever requested or conducted." Graves is not attempting to introduce polygraph results into trial; rather, he asserts that he should have been allowed to explore the implications of the government's inclusion of the polygraph clause in the agreement as an issue going to Myron Palermo's credibility. In addition, Graves complains that the government and Myron Palermo affirmatively misrepresented that the redacted agreement was the entire agreement, when Palermo, at the conclusion of an extended colloquy on the agreement, affirmed that it was the "entire" and "only agreement" he had with the government.

1.

For purposes of this appeal, we will assume that the district court erred in permitting the clause to be redacted. Also, we will assume that the offer made by the district court to Graves--that the clause could be left in, but that Graves would not be permitted to ask questions about whether a polygraph examination was given and the court would issue a cautionary instruction--would not cure this error.

At trial, Graves did not object (renew his objection) to the introduction of the redacted agreement. Rule 103 requires that a timely objection be made; otherwise, we review only for plain error. See Fed.R.Evid. 103. Although it may seem redundant--as well as contrary to the underlying reasons for motions in limine--to require Graves to object at trial after having unsuccessfully opposed the motion in limine, we are bound by a recent decision by this circuit that plainly requires Graves to lodge a contemporaneous objection in order to preserve the...

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