U.S. v. Hayes, 84-5154

• Decision Date: 04 November 1985
• Docket Number: No. 84-5154,84-5154
• Citation: 775 F.2d 1279
• Parties: UNITED STATES of America, Appellee, v. Clifford HAYES, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1279

775 F.2d 1279

UNITED STATES of America, Appellee, v. Clifford HAYES, Appellant.

No. 84-5154.

United States Court of Appeals, Fourth Circuit.

Argued April 5, 1985.

Decided Nov. 4, 1985.

A. Scott Miller, Miami, Fla. (McMaster, Forman & Miller, Lisa M. Berlow-Lehner, Miami, Fla., on brief) for appellant.

Francis J. Martin, Washington, D.C. (Sidney M. Glazer, Bethesda, Md., Samuel T. Currin, U.S. Atty., J. Douglas McCullough, Asst. U.S. Atty., Raleigh, N.C., on brief) for appellee.

Before WIDENER and MURNAGHAN, Circuit Judges, and WARRINER, District Judge for the Eastern District of Virginia, sitting by designation.

WIDENER, Circuit Judge:

Clifford Hayes appeals from his jury convictions on one count of traveling in interstate commerce in order to commit bribery, in violation of the Travel Act, 18 U.S.C. Sec. 1952(a), and for one count of conspiracy to violate the Travel Act, in violation of 18 U.S.C. Sec. 371. Of the issues raised on this appeal, we are persuaded by Hayes' contention that the indictment on the substantive count of violating the Travel Act is defective. We therefore vacate the conviction for the substantive violation of 18 U.S.C. Sec. 1952(a), count I of the indictment. Finding no other error, we affirm the conviction on the conspiracy count.

I

In 1977, Charles Hines and Ronald Roberts were fellow prisoners at the Duvall County jail in Tallahassee, Florida. During their confinement, the two men became friends, and Hines confided in Roberts that the former had influence with the sheriff of Beaufort County, North Carolina, and could assure the protection of any illegal activity in that county.

Roberts was released from prison in February 1982. At the time, Roberts had agreed to act as an informant for the United States Customs Service and local authorities in Florida. In the spring of 1982, Roberts traveled to Washington, North Carolina to visit Hines, who had earlier been paroled and was now living in Washington. During the visit, Roberts explored with Hines the possibility of engaging in various forms of illegal activities in Washington, which is located in Beaufort County. Unaware of Roberts role as a government informant, Hines gave assurances that he could control the sheriff of Beaufort County, Nelson Sheppard. At that point, Roberts returned to Florida to participate in the infiltration of a drug smuggling operation.

As a result of his undercover role in the Florida drug investigation, Roberts became associated with the defendant Clifford Hayes. During this same period, in the summer of 1982, Hines remained in contact with Roberts, encouraging him to initiate criminal activity in Washington. Roberts explained to Hines that he was deeply involved with others in drug smuggling in Florida, and could not get to Washington. Hines again assured Roberts that the local sheriff would provide protection, and invited Roberts to bring his associates to Washington.

In August 1982, Roberts contacted Hines about the possibility of finding an off-loading site for marijuana shipments in North Carolina. On August 19, 1982, Hines visited the office of Sheriff Sheppard, and told Sheppard that friends of Hines wanted to secure a protected place to bring in a boat load of marijuana. Hines named Roberts and Hayes, and suggested to Sheppard that he meet with them. Hines was unaware that at the time Sheriff Sheppard was working with the North Carolina State Bureau of Investigation and had tape recorded their conversation. ¹

Hines later telephoned Roberts to report that Sheppard, described as "an interested party," had agreed to talk with Roberts and Hayes about providing protection. This telephone conversation was taped by Roberts.

On August 21, 1982, Hines spoke by phone with Roberts and Hayes, and then reported to Sheppard that the two men desired a meeting. On August 22, 1982, Hines informed Sheppard that Roberts and Hayes would be arriving in Washington on August 24th. Hines again spoke to Sheppard on the following day, August 23rd, and reported another conversation between Hines, Roberts and Hayes. Hines told Sheppard that Roberts and Hayes were flying from Florida to Charleston, South Carolina, and would be arriving in Beaufort County the next morning.

On August 24, 1982, Roberts and Hayes arrived in Beaufort County in Hayes' airplane. They were picked up at the airport by Hines, upon which they drove to a coastal area to inspect possible off-loading sites. They later returned to Hines' residence, where Hines telephoned Sheppard. During the phone call, Hayes spoke with Sheppard about the requirements for a feasible off-loading site and how much money Sheppard would receive. Later that day, Hayes, Hines and Roberts visited Sheppard's office, where Hayes and Sheppard discussed further the details of the marijuana smuggling venture. Hayes and Sheppard agreed that any off-loading would take place after the Labor Day holiday. At the conclusion of the meeting, Hayes and Roberts returned to Florida.

Over the next several weeks, Hines continued to act as intermediary between Sheppard and Hayes and Roberts. The planned off-loading had been delayed because of financial and boat problems, but Hines maintained his efforts to keep Sheppard interested in the matter. On September 9, 1982, Hayes spoke to Sheppard on the phone, and confirmed that the smuggling operation would go through, and that Sheppard would receive $100,000 for protection.

In October 1982, at the request of the United States Customs Service, Sheppard ceased all contacts with Hines, at which time the investigation ended. Hines soon became concerned about his involvement in the smuggling scheme, and arranged to be interviewed by state and federal law enforcement officials, to whom he admitted his involvement with Hayes and their effort to bribe Sheppard.

In a superseding indictment filed on March 20, 1984, the Grand Jury charged Hayes and Hines with one count of traveling in interstate commerce with intent to promote the bribery of a state official, in violation of 18 U.S.C. Sec. 1952(a) (Count I) and one count of conspiracy to promote the bribery of a state official, in violation of 18 U.S.C. Sec. 371 (Count II). Prior to trial, the charges against Hines were dismissed in exchange for his agreement to testify at trial on behalf of the government.

On appeal, Hayes raised two issues. First, he argues that Count I of the indictment is defective for failure to allege a subsequent overt act in furtherance of the unlawful activity proscribed by Sec. 1952(a). Second, Hayes contends that Hines, the sole co-conspirator identified in the indictment, was in fact a government informant throughout the alleged conspiracy, that the evidence presented at trial was insufficient to show otherwise, and therefore no conspiracy could have existed.

II

Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides an indictment shall be a "plain, concise and definite written statement of the essential facts constituting the offense charged." This mandate of the rule, as questioned here, is met through the satisfaction of two requirements. The indictment must charge all the essential elements of a criminal offense and sufficiently apprise the defendant of what he must be prepared to meet so he will not be misled while preparing his defense, and it must protect the defendant against later prosecution for the same offense. Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1046-1047, 8 L.Ed.2d 240 (1962).

Hayes argues, and the point is well taken, that Count I of the indictment is defective for failure to allege a subsequent overt act in furtherance of the unlawful activity, a required element for a violation of the Travel Act, 18 U.S.C. Sec. 1952(a). See, e.g., United States v. Perez, 700 F.2d 1232, 1238 (8th Cir.1983); United...