U.S. v. Hairston

• Citation: 46 F.3d 361
• Decision Date: 01 February 1995
• Docket Number: 92-5606 and 92-5631,Nos. 92-5597,92-5605,s. 92-5597
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick Turner HAIRSTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rodney Jerome SUMLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lee Faye McDonald MACK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Rodney Jerome SUMLER, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 361

46 F.3d 361

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Turner HAIRSTON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rodney Jerome SUMLER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lee Faye McDonald MACK, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Rodney Jerome SUMLER, Defendant-Appellee.

Nos. 92-5597, 92-5605, 92-5606 and 92-5631.

United States Court of Appeals,

Fourth Circuit.

Argued July 15, 1994.

Decided Feb. 1, 1995.

ARGUED: James Richard Glover, Glover & Petersen, P.A., Chapel Hill, NC, James Elliot Ferguson, II, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., Charlotte, NC, for appellants. Douglas Cannon, Asst. U.S. Atty., Greensboro, NC, for appellee. ON BRIEF: William E. Martin, Federal Public Defender, Gregory Davis, Asst. Federal Public Defender, Greensboro, NC, for appellant Mack. Walter C. Holton, Jr., U.S. Atty., Bryan E. Gates, Third Year Law Student, Donald Ross Hamilton, Third Year Law Student, Elizabeth Ann Hamilton, Third Year Law Student, Wake Forest School of Law, Winston-Salem, NC, for appellee.

Before ERVIN, Chief Judge, and BUTZNER and PHILLIPS, Senior Circuit Judges.

Affirmed in part, reversed in part, vacated in part, and remanded in part by published opinion. Senior Judge BUTZNER wrote the opinion, in which Chief Judge ERVIN and Senior Judge PHILLIPS joined.

OPINION

BUTZNER, Senior Circuit Judge:

The principal issues are whether the evidence is sufficient to sustain the verdicts finding Patrick T. Hairston and Rodney J. Sumler guilty of extortion and whether the instruction pertaining to extortion under color of official right was reversible error. A grand jury returned a 28-count indictment against Hairston, Sumler, and Lee Faye Mack. The jury convicted both Hairston and Sumler of racketeering, RICO conspiracy, extortion, mail fraud, money laundering, violations of the Travel Act, and conspiracy to obstruct the Internal Revenue Service. The jury also convicted Sumler for filing a false income tax return, and it convicted Sumler and Mack for perjury. We affirm, vacate, reverse, and remand in part.

I

The Winston-Salem, North Carolina, Board of Aldermen is composed of a mayor and eight aldermen elected from the city's eight wards. The Board is responsible for voting on zoning matters and city contracts. At the time of his election to the Board, Hairston was serving as president of the Winston-Salem chapter of the NAACP and People Are Treated Human, Inc. [PATH], a local charity he founded to address crime and drug abuse. Upon his election, he resigned from these positions.

Sumler owned a consulting firm, Associate Consultants, Inc., and both he and Mack held positions of authority in several local charities. Sumler succeeded Hairston as president of PATH and Mack served as vice president.

Sumler and Hairston were convicted of eight counts of extortion in violation of the Hobbs Act, which provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by ... extortion or attempts or conspires so to do ... shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

18 U.S.C. Sec. 1951(a). The statute defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. Sec. 1951(b)(2).

The Act proscribes two types of extortion. The first requires proof that the defendant induced payment by use of threats or fear. To prove extortion by fear of economic harm, the government must establish that the threat of such harm generated fear in the victim. The victim's state of mind is relevant, and the government may show not only what a defendant said but also what a victim believed about the situation. See United States v. Goodoak, 836 F.2d 708, 712-13 (1st Cir.1988). The threat need not be express: "[A] defendant who threatens a victim in esoteric, veiled, or elliptical language need not offer a simultaneous translation or define his terms, as long as he thinks or should think the victim understands what has been said." Goodoak, 836 F.2d at 714.

The second type of extortion involves obtaining property from another under color of official right. To prove this type of extortion the government need not show that the defendant demanded or induced payment. Evans v. United States, --- U.S. ----, ----, 112 S.Ct. 1881, 1888, 119 L.Ed.2d 57 (1992). Although the Supreme Court has not yet ruled on the question in contexts other than campaign contributions, we have stated that the government must prove a quid pro quo when it charges extortion under color of official right. United States v. Taylor, 993 F.2d 382, 385 (4th Cir.1993) (dictum). But cf. United States v. Blandford, 33 F.3d 685, 695-96 (6th Cir.1994). This requirement is not onerous. In Evans, which required proof of a quid pro quo because it involved campaign contributions, the Court held that "the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." --- U.S. at ----, 112 S.Ct. at 1889. Concurring, Justice Kennedy explained the meaning of quid pro quo in the context of the Hobbs Act as follows:

The requirement of a quid pro quo means that without pretense of any entitlement to the payment, a public official violates Sec. 1951 if he intends the payor to believe that absent payment the official is likely to abuse his office and his trust to the detriment and injury of the prospective payor or to give the prospective payor less favorable treatment if the quid pro quo is not satisfied. The official and the payor need not state the quid pro quo in express terms, for otherwise the law's effect could be frustrated by knowing winks and nods.

--- U.S. at ----, 112 S.Ct. at 1892. The official need not actually fulfill the quid pro quo. Evans, --- U.S. at ----, 112 S.Ct. at 1889.

Neither type of extortion requires a direct benefit to the extortionist. The "gravamen of the offense is loss to the victim." United States v. Santoni, 585 F.2d 667, 673 (4th Cir.1978) (citations and internal quotation marks omitted).

In evaluating whether there is sufficient evidence to support a conviction, "[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). In this case, each count was prosecuted under the theories of extortion by fear of economic harm and extortion under color of official right.

II

Hairston and Sumler assert that there were no express or implied threats of economic harm against the alleged victims, Idlewild Company, Larco Construction Company or Peach State Capital Company. They also claim that the government failed to prove any quid pro quo in its effort to convict them of extortion under color of official right. They contend that the payments were used only to cultivate community support for Idlewild, Larco, and Peach State through charitable contributions and lobbying.

They also insist that because no checks were payable to Hairston they could not be convicted of extortion. Each extortion count, however, is based in part on 18 U.S.C. Sec. 2 which punishes an aider and abettor as a principal. A private person can be convicted of aiding and abetting a public official who extorts under color of official right. One who collects the extorted payments is no less guilty than the official he serves. United States v. Grande, 620 F.2d 1026, 1031-32 (4th Cir.1980).

Idlewild

Counts 4, 5, and 7 charged Hairston and Sumler with the extortion and attempted extortion of checks from Idlewild. These checks all pertain to a loan made at the request of Hairston and Sumler to help with Hairston's taxes.

Scott Gwyn, the president of the company, testified that he had never experienced difficulty with his rezoning petitions before Hairston was elected. Shortly after Hairston took office, Sumler called Gwyn to offer his consulting services on Idlewild's rezoning petition for the North Chase Shopping Center site, which was then pending before the Board. Although Gwyn initially declined to retain Sumler, he testified that "[w]ithin 48 hours, or two business days, Mr. Sumler showed up on my doorstep again, petitioning the services of his company." When questioned about the content of this meeting with Sumler, Gwyn stated:

I again told him that I really wasn't interested in ... his services, and didn't think that the case would require it. He then mentioned that he had a personal relationship with one of the aldermen, which could either help or hinder me if we got involved in this project, and he didn't get involved in this project. I was a white man coming into a black ward, and had been a successful developer, and would need as much help as I could get.

Sumler quoted a price of $3,000 to help with the rezoning matter pending before the Board.

Hairston, Sumler, and Gwyn then met to discuss the rezoning of the North Chase property. When questioned about the substance of this meeting, Gwyn responded:

I asked Alderman Hairston how he felt about the property, and the proposed project, and he indicated that he would support it. And he indicated that because I was going to be retaining Mr. Sumler for this zoning, he wouldn't have any problem with the project, and he would support it.

Gwyn asked if Hairston would like to see a site plan or some schematic renderings of the proposed North Chase Shopping Center, but Hairston wasn't interested. Gwyn agreed to retain Sumler. In explaining his decision in court, he said: "I felt like I wouldn't get favorable zoning for the properties I owned in the Northern Ward."

Hairston, Sumler, and Gwyn met...