U.S. v. Gray, No. 05-4482.

CourtU.S. Court of Appeals — Sixth Circuit
Writing for the CourtGriffin
Citation521 F.3d 514
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Nathaniel GRAY, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Gilbert Jackson, Defendant-Appellant.
Decision Date02 April 2008
Docket NumberNo. 06-3086.,No. 06-3209.,No. 05-4482.
521 F.3d 514
UNITED STATES of America, Plaintiff-Appellee,
v.
Nathaniel GRAY, Defendant-Appellant.

[521 F.3d 515]

United States of America, Plaintiff-Appellee,
v.
Gilbert Jackson, Defendant-Appellant.
No. 05-4482.
No. 06-3086.
No. 06-3209.
United States Court of Appeals, Sixth Circuit.
Argued: May 29, 2007.
Decided and Filed: April 2, 2008.

[521 F.3d 519]

ARGUED: William T. Whitaker, Akron, Ohio, Robert C. Jenkins, New Orleans, Louisiana, for Appellants. Nina Goodman, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: William T. Whitaker, Andrea L. Whitaker, Akron, Ohio, Robert C. Jenkins, New Orleans, Louisiana, for Appellants. Nina Goodman, United States Department of Justice, Washington, D.C., Ann C. Rowland, Assistant United States Attorney, Cleveland, Ohio, for Appellees.

Before: GILMAN, GIBBONS, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.


In these consolidated appeals, defendants Nathaniel Gray and Gilbert Jackson appeal their jury trial convictions on multiple counts of violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d); conspiracy to obstruct and obstruction of interstate commerce by extortion in violation of the Hobbs Act, 18 U.S.C. § 1951; and "honest services" mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1346. Gray also pleaded guilty to one count of income tax evasion, 26 U.S.C. § 7201. Defendants' convictions stem from their alleged schemes to procure government contracts for corporate, clients and financial gains for themselves by illicitly providing money and gifts to public officials in exchange for political influence in the bid for municipal contracts.

The paramount common issue raised by both defendants is whether certain evidence obtained through court-authorized electronic surveillance pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III" or "the Act"), 18 U.S.C. §§ 2510-22, was properly admitted at trial and, concomitantly, whether the district court abused its discretion by refusing to require disclosure of certain illegally intercepted conversations of defendants. Jackson and Gray also challenge the viability of their Hobbs Act convictions in light of our recent decision

521 F.3d 520

in United States v. Brock, 501 F.3d 762 (6th Cir.2007). In addition, defendants raise numerous other issues in these appeals, including, inter alia, challenges to the sufficiency of the evidence; the district court's denial of motions for severance, continuance, and mistrial; prosecutorial misconduct; claims of error in jury instructions; and cumulative error. Gray also appeals his sentences imposed under the advisory Guidelines.

For the reasons stated below, we reverse Gray's convictions on Counts 30, 31, and 41 of the superseding indictment but affirm his convictions and sentences on all remaining counts. With regard to Jackson, we reverse his conviction on Count 41 but conclude that the remainder of his assignments of error are without merit and affirm his convictions on all other counts. Accordingly, we affirm in part, reverse in part, and remand these cases to the district court for resentencing consistent with this opinion.

I.

Nathaniel Gray was a businessman based in Cleveland, Ohio, who, during the relevant time period related to this prosecution, operated a consulting firm, ETNA Associates, Inc., and several other businesses. Gilbert Jackson was a senior vice-president, involved in marketing and business development, in the New Orleans office of Camp, Dresser & McKee ("CDM"), a national design and engineering firm that specializes in wastewater treatment facilities. In addition to his job with CDM, Jackson independently conducted business as a consultant with Gray. Gray received monthly payments from CDM and other corporate clients, including Honeywell, and in turn paid Jackson a monthly fee of $2,500 or more. In the mid-1990's, defendants, along with other individuals, began to engage in a series of discrete transactions that allegedly involved the unlawful payment of cash and gifts to public officials in four cities — Cleveland and East Cleveland, Ohio; Houston, Texas; and New Orleans, Louisiana — for the purpose of steering municipal contracts to defendants' corporate clients.

A lengthy investigation by the government into defendants' activities ensued. The investigation, which utilized electronic and video surveillance authorized by a federal district court pursuant to Title III, culminated in January 2005 with the issuance by a grand jury of a 45-count superseding indictment charging Gray and Jackson, along with four other individuals, with violations of RICO, the Hobbs Act, and mail and wire fraud statutes. Gray was also charged with one count of tax evasion.

Codefendants Monique McGilbra, Brent Jividen, and Ricardo Teamor entered into plea agreements with the government, thus leaving Gray, Jackson, and coindictee Joseph Jones, a Cleveland City Councilman, to stand trial. A June 2005 jury trial against these defendants in the District Court for the Northern District of Ohio ended in a mistrial after the jury was unable to reach a verdict on some of the charges. The district court ordered an immediate retrial, which began on August 8, 2005. Jones entered a guilty plea on the third day of trial; thus, the trial proceeded against the present defendants, Gray and Jackson.

On August 17, 2005, the jury found Gray guilty of one count of conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity (RICO conspiracy), in violation of 18 U.S.C. § 1962(d) (Count 1); three counts of conspiring to obstruct interstate commerce by extortion (Hobbs Act conspiracy), in violation of 18 U.S.C. § 1951(a) (Counts 2, 26, and 41); twelve counts of obstructing interstate

521 F.3d 521

commerce by extortion (substantive Hobbs Act violations), contrary to 18 U.S.C. § 1951(a) (Counts 3-9 and 27-31); and twenty counts of honest services mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1346 (Counts 10-15, 20, 22, 32-40, and 42-44).1 Gray entered a plea of guilty to tax evasion (Count 45), in violation of 26 U.S.C. § 7201, a charge that had been severed from the primary trial.

The jury convicted Jackson on one count of RICO conspiracy (Count 1); two counts of Hobbs Act conspiracy (Counts 26 and 41); one count of a substantive Hobbs Act violation (Count 28); and four counts of honest services mail and wire fraud (Counts 37 and 42-44). The jury acquitted Jackson on eight counts of mail and wire fraud (Counts 32-36 and 38-40).

Following the jury verdict, defendants moved for a judgment of acquittal and/or new trial under Federal Rule of Criminal Procedure 29. The district court denied defendants' motions. See United States v. Gray, Docket No. 1:04CR580, 2005 WL 3059482 (N.D.Ohio, Nov.15, 2005) (unpublished).

The district court sentenced Gray to 180 months of imprisonment on the RICO and Hobbs Act counts and to 60 months of imprisonment on the tax evasion and fraud counts, with all sentences to be served concurrently. The court ordered Gray to pay $1,587,000 in restitution and $3,700 in special assessments. Jackson was sentenced to concurrent terms of 82 months of imprisonment on Counts 1, 26, 28, and 41 and to concurrent terms of 60 months of imprisonment on Counts 37 and 42-44. The district court ordered Jackson to pay $800 in costs and $100,000 in restitution.

In these consolidated appeals, Gray and Jackson now timely appeal their convictions. Gray also appeals his sentences.

II.
A.

The prosecution's case against defendants consisted of, in significant part, wiretap evidence obtained pursuant to Title III, which sets forth specific procedural requirements that must be followed before the government will be allowed to intercept the private conversations of citizens. As a prerequisite to surveillance, the government must submit a properly authorized application and obtain an approval order from a judge of competent jurisdiction. 18 U.S.C. § 2516. The Act not only delineates the substantive provisions that must be included in both the surveillance application and authorizing order, but also proscribes the offenses covered under the Act, requires specific findings of fact on the part of the issuing judge with regard to probable cause, and places temporal limitations on the validity of the order. 18 U.S.C. § 2518. "The Supreme Court has explained that this system evinces Congress's `clear intent to make doubly sure that the statutory authority be used with restraint and only where circumstances warrant the surreptitious interception of wire and oral communications.'" United States v. Staffeldt, 451 F.3d 578, 580 (9th Cir.2006) (quoting United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974)).

Title III provides for the suppression of all or part of the contents of intercepted wire or oral communications "if the disclosure

521 F.3d 522

of that information would be in violation of this chapter." 18 U.S.C. § 2515. "Any aggrieved person in any trial, hearing, or proceeding in or before any court" may move to suppress intercepted communications on three grounds: "(i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was interpreted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval." 18 U.S.C. § 2518(10)(a)(i-iii).

"The words `unlawfully intercepted' [contained in paragraph (i)] are themselves not limited to constitutional violations," but may include statutory infringements. Giordano, 416 U.S. at 527, 94 S.Ct. 1820. However, the Supreme Court "did not go so far as to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications `unlawful.'" United States v....

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54 practice notes
  • United States v. Hills, 19-3372
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 3, 2022
    ...that the district court's calculation "was not only inaccurate, but outside the realm of permissible calculations." United States v. Gray, 521 F.3d 514, 543 (6th Cir. 2008) (quoting United States v. Hamilton, 263 F.3d 645, 654 (6th Cir. 2001)). At the outset, defendants asserted that only o......
  • United States v. Savage, CRIMINAL ACTION NO. 07-550
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • April 2, 2013
    ...into large scale conspiracies, including RICO conspiracies. See, e.g., Heilman, 377 F. App'x at 174-75; United States v. Gray, 521 F.3d 514, 528 (6th Cir. 2008); United States v. Luong, 215 F. App'x 639, 645-46 (9th Cir. 2006); United States v. Miller, 116 F.3d 641, 660 (2d Cir. 1997); Unit......
  • United States v. Riccardi, No. 19-4232
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 3, 2021
    ...the realm of permissible computations." United States v. Jackson , 25 F.3d 327, 330 (6th Cir. 1994) ; see, e.g. , United States v. Gray , 521 F.3d 514, 543 (6th Cir. 2008). The government places undue reliance on this standard of review. Yes, it may sometimes be difficult to estimate the ac......
  • United States v. Brunson, No. 18-4696
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 31, 2020
    ...orders and held that communications intercepted under those orders were not subject to suppression. See, e.g. , United States v. Gray , 521 F.3d 514, 526–28 (6th Cir. 2008) (holding that the omission of the name of the authorizing officer from a wiretap order was a technical defect that did......
  • Request a trial to view additional results
54 cases
  • United States v. Hills, 19-3372
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 3, 2022
    ...that the district court's calculation "was not only inaccurate, but outside the realm of permissible calculations." United States v. Gray, 521 F.3d 514, 543 (6th Cir. 2008) (quoting United States v. Hamilton, 263 F.3d 645, 654 (6th Cir. 2001)). At the outset, defendants asserted that only o......
  • United States v. Savage, CRIMINAL ACTION NO. 07-550
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • April 2, 2013
    ...into large scale conspiracies, including RICO conspiracies. See, e.g., Heilman, 377 F. App'x at 174-75; United States v. Gray, 521 F.3d 514, 528 (6th Cir. 2008); United States v. Luong, 215 F. App'x 639, 645-46 (9th Cir. 2006); United States v. Miller, 116 F.3d 641, 660 (2d Cir. 1997); Unit......
  • United States v. Riccardi, No. 19-4232
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 3, 2021
    ...the realm of permissible computations." United States v. Jackson , 25 F.3d 327, 330 (6th Cir. 1994) ; see, e.g. , United States v. Gray , 521 F.3d 514, 543 (6th Cir. 2008). The government places undue reliance on this standard of review. Yes, it may sometimes be difficult to estimate the ac......
  • United States v. Brunson, No. 18-4696
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 31, 2020
    ...orders and held that communications intercepted under those orders were not subject to suppression. See, e.g. , United States v. Gray , 521 F.3d 514, 526–28 (6th Cir. 2008) (holding that the omission of the name of the authorizing officer from a wiretap order was a technical defect that did......
  • Request a trial to view additional results

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