U.S. v. Hedgepeth, 04-4553.

• Decision Date: 12 August 2005
• Docket Number: No. 04-4553.,04-4553.
• Citation: 418 F.3d 411
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gwendolyn Cheek HEDGEPETH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

418 F.3d 411

UNITED STATES of America, Plaintiff-Appellee, v. Gwendolyn Cheek HEDGEPETH, Defendant-Appellant.

No. 04-4553.

United States Court of Appeals, Fourth Circuit.

Argued March 18, 2005.

Decided August 12, 2005.

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ARGUED: William Todd Watson, Hargett & Watson, P.L.C., Richmond, Virginia, for Appellant. Stephen Wiley Miller, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: David B. Hargett, Hargett & Watson, P.L.C., Richmond, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before NIEMEYER, LUTTIG, and KING, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER and Judge LUTTIG joined.

KING, Circuit Judge.

Gwendolyn Cheek Hedgepeth, a former member of the Richmond City Council, appeals her convictions and sentence in the Eastern District of Virginia on multiple offenses arising from a bribery and extortion scheme. The activities underlying that scheme occurred in 2002 and 2003, and related to the City Council's selection of a Mayor and interim Council members. An FBI undercover investigation gave rise to the grand jury's indictment of Hedgepeth and to her resulting convictions. Hedgepeth was first indicted on August 20, 2003, and the grand jury returned a second superseding indictment on January 6, 2004. The second superseding indictment, on which she was tried, charged Hedgepeth in five counts with violations of the Hobbs Act and related offenses.¹ More specifically, she was charged with conspiracy to commit extortion, in contravention of 18 U.S.C. § 1951 (Count One); attempting to commit extortion, in violation of 18 U.S.C. §§ 1951-1952 (Count Two); making false statements to federal officers, in contravention of 18 U.S.C. § 1001 (Count Three); extortion and attempting to commit extortion, in violation of 18 U.S.C. § 1951 (Count Four); and conspiracy to commit mail fraud, in contravention of 18 U.S.C. §§ 371 and 1349 (Count Five).

Hedgepeth's jury trial began in Richmond on March 30, 2004, and concluded on April 2, 2004. She was convicted of Counts One through Four and acquitted on Count Five. Hedgepeth was sentenced on July 2, 2004, to forty-four months of imprisonment, and she has filed a timely appeal. Hedgepeth raises three issues on appeal, two concerning the trial court's evidentiary rulings and the third arising from the court's refusal to delay her sentencing hearing. As explained below, we find no reversible error and affirm.

I.

A.

Hedgepeth represented Richmond's Ninth District on the City Council from 1992 through 1994, and again from 1998 through the events underlying this prosecution. In 2002, Hedgepeth became the subject of an FBI investigation when she accepted money in connection with her involvement in certain City Council business. The investigation's initial target had been H. Louis Salomonsky, a wealthy architect and real estate developer in Richmond, and a friend of several Council members, who had sought to secure the election of Councilman William Pantele as Mayor.² Salomonsky was interested in the Council's activities because it was the ultimate zoning authority for Richmond.

Robert Davis, Salomonsky's acquaintance of twenty-five years, cooperated with the FBI's investigation of Salomonksy, and later, of Hedgepeth. Davis, a convicted felon, had been charged in October 2002 with illegal possession of a firearm, and he agreed to assist the investigation in an effort to mitigate his own problems. Davis met with Salomonsky on December 10 2002, and, at the direction of the FBI, wore a wire transmitter. During the meeting, Salomonsky expressed his interest in having Pantele elected as Mayor, and Davis asked Salomonsky if he needed assistance securing Hedgepeth's vote. Salomonsky responded that he thought that "Gwen Hedgepeth might be in the kickback business,"³ and expressed an interest in Davis's assistance. When Salomonsky asked Davis, "What do you think it's going to cost?" Davis replied, "probably a thousand dollars."⁴

At the direction of the FBI, Davis then contacted Hedgepeth, who he had known from various dealings with City Council and from other activities in the community. Davis met Hedgepeth on December 19, 2002, at the Henderson Middle School, where she taught. Davis was again wired by the FBI. At this meeting, Hedgepeth agreed to support Pantele for Mayor. After pledging her support, she mentioned her campaign debt of $2158: "You asked me about helping . . . with this Mr. Pantele thing . . . so I can help with that . . . now when can you help me with my debt?" According to Davis, it was his "understanding" that if Hedgepeth's campaign debt was paid off, she "would back Mr. Pantele." Davis subsequently reported to Salomonsky that it was going to cost $2158 to get Hedgepeth to vote for Pantele.

Davis talked to Hedgepeth again on December 23 and 31, 2002. By then, Pantele's chances of being elected Mayor had become slim. When Davis asked Hedgepeth whether she could support Pantele for Vice-Mayor, she advised that she was backing another Council member for that post. During their December 31 meeting, Hedgepeth, in referring to the money Davis had promised, asked if Davis's friends were "supportive . . . depending on how I vote, or are they supportive from a standpoint of I have, you know, tried to make this thing work." The next day, Davis spoke with Hedgepeth again, and they mutually agreed that Pantele "didn't have a chance." The Council meeting to select the Mayor and Vice-Mayor was held on January 2, 2003, and Mr. Pantele was not elected to any office.

Davis met with Hedgepeth again on January 22, 2003, wired by the FBI. Davis gave Hedgepeth $500 in cash, according to Davis, to "sort of thank her for the attempt to help Pantele be mayor or vice mayor," and as a "retainer or whatever . . . to help us in the future because she still needed the money." Hedgepeth accepted the cash and advised Davis that she would enter it as a contribution "by more than one," so that she would not have to itemize who had contributed the money.

Over four months later, on May 8, 2003, two FBI agents interviewed Hedgepeth at her residence. When they asked whether Pantele or anyone had offered to pay for her vote in the mayoral election, she answered no. She denied that anyone had sought to gain influence with her by making "disguised" payments, by paying down her campaign debt, or by making her a loan with favorable terms. Because the agents considered certain of Hedgepeth's responses to be false, they continued to investigate her.

In the summer of 2003, two unexpected vacancies arose on the City Council.⁵ These vacancies were to be filled by interim members appointed by the Council on July 28, 2003, and then by members to be elected by the voters in November 2003. Davis, again wired by the FBI, contacted Hedgepeth on July 15 and 16 to discuss the vacancies and two possible candidates, Ellen Robinson and Lawrence Williams, for the Sixth District seat. Hedgepeth expressed an inclination to support Robinson, but Davis asked Hedgepeth to "change horses" and "back" Williams. Davis stated, "If you could do that, heck, I will meet you tomorrow and give you the money to clean up your campaign debt." Hedgepeth replied, "Well, let me, let me keep these things separate, man, because I can't, I can't be in a position where I am, let me say, compromising."

Davis and Hedgepeth met again on July 21, 2003, seven days before the Council meeting at which the interim members were to be appointed. On this occasion, they went to a McDonald's restaurant and then returned to Davis's vehicle, which was equipped with FBI audio and video equipment. Hedgepeth stated that she had "settled it in her heart" to support Williams. She and Davis also discussed Williams's need to obtain posters and a voter list, and to request funds from potential supporters for the upcoming election.⁶ Davis then handed Hedgepeth $2000 in $100 bills, saying to her, "Well, honey, listen here is two grand, count it, make sure it's right." He told her that it was for her help backing Williams. When Hedgepeth hesitated, Davis assured her, "I have counted it one time." Hedgepeth again hesitated, stuttering, "This. This." Davis testified that she held the money "for a period of time," and he did not "understand why this hesitancy." Davis urged her, "You can do whatever you want to with it." Hedgepeth responded, "This is what I need you to do," and asked Davis, "Can you get four people to give me $500 in contributions?" Davis responded that he did not want to ask other people to do anything, and told her to "spend [it] how you want to. It's cash. Buy things that you need." Hedgepeth replied, "So I'm hearing you say this is not a campaign contribution." Davis then offered suggestions as to how she could use the money: "You can help little kids with it if you want to," and, "You can give it to the church if you want to, I don't care." Hedgepeth then stated that she would use the money "for the kids' computer [project]," one of Hedgepeth's priority Council initiatives.⁷

On July 24, 2003, FBI agents arrested Hedgepeth, and interviewed her at the Richmond FBI office. They also recovered the $2000 in cash, though one of the $100 bills had been replaced with five $20 bills.

B.

At trial, Salomonsky and Davis testified for the prosecution regarding their dealings with each other and with Hedgepeth. As part of the prosecution's case-in-chief, Salomonsky testified, over objection, that during his December 10, 2002 meeting with Davis, he had asserted that he thought "Gwen Hedgepeth might be in the kickback business." The court admitted this statement (the "Kickback Statement") into evidence, and gave the jury a cautionary instruction that Salomonsky had testified why he chose to approach Hedgepeth,...