U.S. v. Jackson

• Decision Date: 15 December 1995
• Docket Number: No. 94-10095,94-10095
• Parties: 95 Daily Journal D.A.R. 16,699 UNITED STATES of America, Plaintiff-Appellee, v. Clayton R. JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1370

72 F.3d 1370

95 Daily Journal D.A.R. 16,699

UNITED STATES of America, Plaintiff-Appellee, v. Clayton R. JACKSON, Defendant-Appellant.

No. 94-10095.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 1995.

Decided July 25, 1995.

As Amended on Denial of Rehearing and

Rehearing en Banc December 15, 1995. ^*

Dennis P. Riordan, Riordan & Rosenthal, San Francisco, California and Michael Tigar, University of Texas School of Law, Austin, Texas, for defendant-appellant.

John K. Vincent, Assistant United States Attorney, Sacramento, California, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: FLOYD R. GIBSON ^**, GOODWIN, and HUG, Circuit Judges.

GOODWIN, Circuit Judge:

Clayton Jackson was convicted of racketeering (18 U.S.C. Sec. 1962(c)), conspiracy to commit mail fraud and money laundering (18 U.S.C. Secs. 1956 and 1341), and mail fraud (18 U.S.C. Sec. 1341) for his part in offering bribes to California state Senator Alan Robbins and establishing a money laundering scheme to funnel the money fraudulently obtained from Jackson's clients to Robbins through California state Senator Paul Carpenter. He appeals.

Jackson's primary contention is that existing caselaw requires the jury to find an explicit quid pro quo to convict Jackson of the racketeering charges predicated on violation of a California bribery statute. The appeal also asserts instructional errors and evidentiary shortcomings, none of which justifies reversal. We affirm.

I. BACKGROUND

Clayton Jackson, a prominent lobbyist for the insurance industry, was indicted in a sweeping federal investigation of corruption in Sacramento. Senator Alan Robbins, who was convicted on similar charges, was the Chairman of the Senate Insurance Committee. The following summaries set out the facts underlying each of Jackson's convictions.

A. Racketeering Act 4--Senate Bill 1719

In Racketeering Act 4, the indictment charged Jackson with offering a bribe to Robbins in the form of campaign contributions in exchange for Robbins' assistance in defeating Senate Bill 1719 in early 1988. The governor vetoed the bill after both houses had passed it. Robbins then sent Jackson a letter and newspaper articles chronicling Robbins' action against SB 1719. Shortly thereafter, Jackson's client, who would have been adversely affected by the passage of SB 1719, donated $2,000 to Robbins.

B. Racketeering Act 5--Workers' Compensation

During the course of tape-recorded conversations, Jackson offered Robbins a $250,000 bribe. (Unknown to Jackson, Robbins had already been caught and had agreed to wear a wire in consideration for a reduced sentence.) Jackson promised this substantial reward if Robbins could bring under the jurisdiction of Robbins' friendly insurance committee an upcoming workers' compensation measure that would abolish the minimum rate law. Over a period of months, Jackson and Robbins discussed the outlines of the deal. Jackson promised to raise the money from the small insurance companies he represented, and who would be wiped out if the workers' compensation minimum rate law were abolished. Jackson solicited donations from several insurance executives, telling them that the money would be used to establish a coalition of similar companies backed by a political action committee.

C. Racketeering Act 6 and Counts II through X--Mail Fraud and Money Laundering

Jackson and Robbins sought to avoid the reporting requirements attached to campaign funds. They enlisted the aid of former senator Paul Carpenter, then serving on the Board of Equalization. Carpenter offered to let Jackson's clients contribute to his campaign committee and then have his campaign committee make payments at Robbins' direction.

Jackson, Robbins, and Carpenter worked out a scheme whereby Jackson had his clients contribute to Carpenter, who, as a member of the Board of Equalization, was relatively immune from criticism for accepting large donations from insurance companies. Carpenter, after taking his cut, would then write checks and mail them to the Goddard Company, ostensibly as compensation for public relations work performed by the Goddard Company. In fact, Jennifer Goddard of the Goddard Co. was a friend of Robbins, did no work for Carpenter, and would merely issue a false invoice to Carpenter in return for the payments. Carpenter carried the lie to the California Secretary of State, mailing mandatory reports characterizing these expenditures of campaign funds as payments for professional services. After taking her cut, Jennifer Goddard would either pass the money on to Robbins directly or spend it on Robbins' personal expenses as he directed.

In all, Carpenter received over $84,000 in contributions from Jackson's clients, at Jackson's request, and passed $78,500 on to Goddard, Robbins' front. Checks mailed from Jackson's clients to Carpenter and the false campaign reports mailed from Carpenter to the Secretary of State supported the jury verdict which convicted Jackson of the mail fraud-related offenses. The deposit of checks paid by Carpenter to the Goddard Co. supported the verdict which convicted Jackson of racketeering predicated on money laundering.

II. THE BRIBERY-RELATED OFFENSES

A. The Requirement of a "Quid Pro Quo" Under the California Bribery Statute

Jackson argues that the predicate state bribery offenses charged in Racketeering Act 4 and Act 5 of Count I, the RICO count, require a showing of an explicit agreement to exchange money for a political favor, a quid pro quo, and the district court's failure to so instruct the jury constitutes reversible error.

1. Instructions

Predicate Acts 4 and 5 of the RICO count in the indictment charge Jackson with offering bribes as defined in California Penal Code Sec. 7(6), in violation of California Penal Code Sec. 85. ¹

The district court instructed the jury on bribery, in relevant part, as follows:

No. 27

In order to prove such crime [bribery], each of the following elements must be proved beyond a reasonable doubt:

1. The defendant gave or offered a bribe;

. . . . .

3. The defendant gave or offered such bribe with the specific intent corruptly to influence the other person in his official capacity as to some act, decision, vote, opinion or other proceeding; ...

No. 28

A "bribe" is anything of value or advantage, present or prospective, or any promise to give any such thing asked, given or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given in his action, vote, or opinion, in any public or official capacity.

No. 29

The word "corruptly" imports a wrongful design to acquire or cause some pecuniary or other advantage to the person guilty of the act or omission referred to, or to some other person.

No. 31

To constitute the crime of offering a bribe, it is not necessary that any particular words or conduct be used, provided that the means of communication used, viewed in the light of the attending circumstances, is such as to clearly show that a bribe is being offered.... ²

2. Standard of Review

"Whether a jury instruction misstates elements of a statutory crime is a question of law and is reviewed de novo." U.S. v. Johnson, 956 F.2d 197, 199 (9th Cir.1992). There is a great deal of argument in the briefs over whether the plain error or abuse of discretion standard should apply here. Because the issue is whether McCormick implies a quid pro quo element into a Sec. 85 offense, the question is one of law, not merely of the wording of the instructions.

The government claims that Jackson failed to preserve the issue with a proper objection and therefore the plain error standard applies. Even absent a formal objection after the rejection of his proposed instruction, Jackson adequately preserved the issue. He argued his quid pro quo point throughout, offered an alternative instruction, and it is clear from the record the court knew of his objection. See U.S. v. Kessi, 868 F.2d 1097 (9th Cir.1989) (establishing test to determine whether an issue was adequately preserved absent a formal objection).

3. Discussion

The heart of the debate is whether the Supreme Court, in McCormick v. U.S., 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), mandates reading a quid pro quo requirement into California's bribery laws. At the jury instructions conference and now in his brief, Jackson argued that the holding of McCormick applies to the California bribery charges, requiring the jury to find an explicit promise or agreement between Sen. Robbins and Jackson to exchange money for the performance of an official act.

In McCormick, the Supreme Court interpreted the Hobbs Act, which prohibits extortion under color of official right, and held that a Hobbs Act violation can be found only "if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act." McCormick, Id. at 273, 111 S.Ct. at 1816.

In support of his assertion that McCormick applies to the California bribery statute, Jackson relies on U.S. v. Freeman, 6 F.3d 586 (9th Cir.1993). He argues that Freeman interpreted the McCormick quid pro quo requirement as a constitutional limitation on criminalizing campaign contributions. In Freeman, the appellant challenged on First Amendment grounds Cal.Penal Code Sec. 68, which makes it a crime for state employees to ask, receive, or agree to receive a bribe. This Court upheld the constitutionality of Sec. 68, saying that "[a]lthough the defendant state representative in McCormick was charged with violating the Hobbs Act rather than RICO [with a predicate violation of Sec. 68], the Supreme Court's decision in that case controls this question." Id. at 597.

The district court rejected Jackson's argument that without the requirement of a quid pro quo, the jury may have convicted him for exercising his protected speech in ways that, though offensive to lay...