U.S. v. Haskins, 83-1990

• Decision Date: 12 June 1984
• Docket Number: No. 83-1990,83-1990
• Parties: 15 Fed. R. Evid. Serv. 1848 UNITED STATES of America, Plaintiff-Appellee, v. Clyde Ray HASKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 844

737 F.2d 844

15 Fed. R. Evid. Serv. 1848

UNITED STATES of America, Plaintiff-Appellee, v. Clyde Ray HASKINS, Defendant-Appellant.

No. 83-1990.

United States Court of Appeals Tenth Circuit.

June 12, 1984.

Gary L. Richardson, U.S. Atty., Muskogee, Okl. (Donn F. Baker, Asst. U.S. Atty., Muskogee, Okl., with him on brief), for plaintiff-appellee.

Bruce Green of Green & Green, Muskogee, Okl., for defendant-appellant.

Before SETH, Chief Judge, BARRETT, Circuit Judge, and SAFFELS ^*, District Judge.

BARRETT, Circuit Judge.

Clyde Ray Haskins (Haskins), a former county commissioner of Pontotoc County, Oklahoma, appeals from his sentence following jury conviction on twenty-five counts of an indictment charging him with mail fraud and aiding and abetting mail fraud, in violation of 18 U.S.C. Secs. 1341 and 2, and three counts of extortion, in violation of 18 U.S.C. Sec. 1951. He was sentenced to a period of five months on each of the twenty-five mail fraud counts, and to a period of five months each on counts 26 through 28, to run consecutively, or a total sentence of eleven years and eight months.

This is one of some two hundred prosecutions resulting from an extensive investigation conducted by the Federal Bureau of Investigation, the Internal Revenue Service, and the United States Attorneys for Oklahoma involving "kickback" payments to Oklahoma county commissioners by vendors/suppliers of material and equipment purchased by the counties for county road and bridge purposes. It is also one of several appeals of like prosecutions decided by this Court. ¹

FACTS

The facts will be recited in summary fashion, keeping in mind the rule that on appeal following conviction we must view all of the evidence, direct and circumstantial, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the government. United States v. Strand, 617 F.2d 571 (10th Cir.1980) cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (1980); United States v. Gibbons, 607 F.2d 1320 (10th Cir.1979); United States v. Twilligear, 460 F.2d 79 (10th Cir.1972).

Haskins, age 64 at time of trial, was elected county commissioner of Pontotoc County, Oklahoma, and commenced service in January of 1979. Prior thereto, he had served in the sheriff's department for about three years. He was reelected county commissioner in 1982. He and his wife, Geraldine, have lived near Ada, Oklahoma, for about twenty years, where they reared three sons. Mrs. Haskins, a medical secretary, testified that since her husband has been county commissioner, they have not acquired any material items of note. They reside in the same home in which they have lived for many years, are purchasing a car on monthly payments, and have accumulated a small savings account. The trial court, over objection, permitted Geraldine Haskins to testify that she handled all the family finances and that a couple of years prior to trial they began installing siding on their home, but completed only about one-third of it because of insufficient funds. She stated further that with the exception of short trips to visit a son in Arkansas, she and her husband had no vacations since 1977.

Clyde Haskins, a veteran of World War II with service in the South Pacific and the Philippines, testified in his own behalf. He denied having received any money from suppliers/vendors Donald H. Skipworth, Leroy Strickland, or Carl Allen, each of whom testified that on various occasions they had in fact paid Haskins ten percent "kickbacks" or fifty-fifty "splits" for his part in fraudulent transactions with the county. These transactions involved sales of materials and equipment to Haskins' second district of Pontotoc County. Haskins allegedly received the "kickbacks" for assuring that the county purchased equipment from a particular vendor. He allegedly received a "split" from sales which never transpired--the vendor was paid but the county did not receive the equipment.

Skipworth, Strickland, and Allen, had each been indicted previously and convicted on identical charges arising out of the same scheme to defraud; each testified under an agreement with the government, however, that in consideration for their cooperation (testimony), the United States Attorney would recommend their sentences be reduced. Defense counsel, in closing argument, referred to each of the three as liars who have committed perjury and who appeared against Haskins as convicted felons seeking reduced sentences. Defense counsel stated, "their [the government's] only evidence of wrongdoing is the word of three fellows [Skipworth, Strickland, and Allen] with felony convictions, admitted liars, and proved perjurers." (R., Vol. IV at 526.) In its case in chief, the defense presented some five vendors who did business with Haskins. Each vendor testified that Haskins did not solicit or discuss kickbacks with them and that they did not make any payments to him. In addition, the defense presented character witnesses who vouched for Haskins' good reputation for truth and veracity.

On appeal, Haskins contends that reversible error occurred and his conviction should be set aside because of the following: (1) the trial court erred in allowing into evidence irrelevant facts which were highly prejudicial to Haskins; (2) there is no proof that mailings of county warrants to the vendors were for the purpose of executing a scheme to defraud as required by the mail fraud statute; (3) there was insufficient evidence to show that Haskins affected or attempted to affect, obstruct, or delay interstate commerce by extortionate means; (4) the improper remarks of the United States Attorney during closing arguments were so prejudicial as to deny Haskins a fair trial; and (5) the failure of the United States Attorney's Office to disclose exculpatory materials pursuant to the court's order denied Haskins a fair trial and denied him the right to confront witnesses.

I.

Haskins contends that testimony of two government witnesses, Donald H. Skipworth and Don Smith, denied him a fair trial. Skipworth and Smith testified that Haskins, before becoming a county commissioner and while working for Smith, a vendor, had paid "kickbacks" to other county commissioners, (those alleged transactions occurred between 1971 and 1975, well outside the time periods contained in the indictment lodged against Haskins). Haskins asserts that because this testimony concerned transactions prior to the dates charged in the indictment, it was irrelevant and inadmissible under Rule 404(b) of the Federal Rules of Evidence. ²

After Smith testified about the transactions, a lengthy discussion between the court and counsel at the bench resulted in the court's order dismissing Smith as a witness and admonishing the jury not to consider his testimony. Even so, Haskins argues that the prejudicial impact of this testimony could not have been lessened by the court's cautionary instruction and striking of the evidence, relying on our decisions in United States v. Westbo, 576 F.2d 285 (10th Cir.1978), United States v. Nolan, 551 F.2d 266 (10th Cir.1977), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977), and United States v. Burkhart, 458 F.2d 201 (10th Cir.1972). In those decisions, we held that the prejudicial impact of evidence of other prior convictions or bad acts outweighed their probative value.

We observe first that during the bench conference the government stated that the books and records supporting Smith's testimony (the best evidence) were available in Oklahoma City and that the government could and would promptly obtain and offer them. At this point, defense counsel proposed that if the government counsel would agree to withdraw Smith as a witness, and if the court instructed the jury not to consider Smith's testimony, the defense would not move for a mistrial. (R., Vol. IV at 228-33.) Thus, the court's cautionary instruction was premised upon this agreement. However, the court had already admitted the testimony pursuant to Rule 404(b). (Id. 213-14.)

The same contention was rejected in United States v. Primrose, 718 F.2d 1484 (10th Cir.1983). There, too, evidence of transactions not charged in the indictment against former county commissioner Primrose was objected to on the ground that it was "cumulative at best, and prejudicial at worst." The evidence admitted involved some forty-five "kickbacks" outside the five-year limitations period. We upheld the trial court's discretion in admitting this evidence under Fed.R.Evid. 403 and 404(b), for the purpose of proof of Primrose's "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Further, in Primrose, we relied upon United States v. Scott, 668 F.2d 384, 387 (8th Cir.1981) (Arkansas road commissioner taking a kickback), where the court upheld the admissibility of prior bad acts:

The fact that a number of the overt acts performed in furtherance of the conspiracy were committed beyond the statute of limitations does not preclude the admission in evidence of such acts to show the nature of the scheme and [the commissioner's] intent where the later use of the mails occurred.

See also, United States v. Reece, 614 F.2d 1259 (10th Cir.1980); United States v. Walton, 552 F.2d 1354 (10th Cir.1977); United States v. Adcock, 558 F.2d 397 (8th Cir.1977), cert. denied, 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977).

The same analysis employed in Primrose applies here. The trial court did not abuse its discretion in admitting the testimony of Haskins' payment of "kickbacks" to other county commissioners during the period he worked for vendor Smith.

II.

Haskins argues that there is no proof that mailings of the county warrants to the vendors were for the purpose of executing a scheme to defraud as required by the mail fraud statute. This contention has been resolved against contentions identical to Haskins' in prior county commissioner cases...