U.S. v. Jackson, 83-3745

• Citation: 748 F.2d 1535
• Decision Date: 19 December 1984
• Docket Number: No. 83-3745,83-3745
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy D. JACKSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1535

748 F.2d 1535

UNITED STATES of America, Plaintiff-Appellee, v. Roy D. JACKSON, Defendant-Appellant.

No. 83-3745.

United States Court of Appeals Eleventh Circuit.

Dec. 19, 1984.

Stuart C. Markman, Tampa, Fla., for defendant-appellant.

John M. Fitzgibbons, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, HILL, Circuit Judge, and PECK ^*, Senior Circuit Judge.

GODBOLD, Chief Judge:

This is a Hobbs Act case, 18 U.S.C. Sec. 1951(a), involving extortion of $5,000 by a bank officer incident to approval of bank financing for a construction project. We affirm the conviction.

The indictment charged the following: Snyder was the owner of Snyder Construction Company, which was engaged in constructing and selling residences in Florida. Snyder had a contract to purchase land for construction of homes. He was unable to complete the purchase because he was in financial difficulties and had a federal tax lien against him. He was turned down for a loan by defendant Jackson, president of a branch bank, and unsuccessfully sought financing elsewhere. He returned to defendant, who advised him to get a partner. Snyder found a partner, Arnold, a well-to-do developer, and the two went together to see defendant. They represented themselves as partners and described their joint venture. Arnold was to apply for the $450,000 line of credit that Snyder had unsuccessfully sought, and this was to be used to buy the land and finance the construction. Snyder was to do the construction. The loan was to be made in Arnold's name. Defendant agreed to recommend the loan, and it was approved. Soon thereafter defendant told Snyder he must pay $5,000, to be paid under the table to unnamed persons. Snyder, Arnold, and Snyder's attorney, notified the FBI.

The $5,000 was delivered to defendant in a sealed envelope by Snyder, who was wired. He brought the envelope to Jackson's office, and in Jackson's presence put it on Jackson's desk. Defendant put the envelope in his desk drawer. Snyder left the office and immediately told FBI agents, who were standing by, that the delivery had been made. Approximately three minutes later the agents confronted defendant in the hallway outside his office, patted him down, and directed him to go into the office. They advised him of his Miranda rights. He declined to sign a waiver. The officers had no search warrant. One of the officers told the defendant to "give him the thing" that Snyder had given him. Jackson opened his desk drawer, retrieved the envelope, and placed it on the desk top. The agents asked him to initial it; he refused, saying he would not sign anything without consulting an attorney. Defendant then stated that he did not know what was in the envelope.

Motions to suppress the envelope, the $5,000, and the testimony of the agents relating to the seizure were correctly denied. Seizure of the envelope and its contents was permissible to prevent the disappearance or destruction of the evidence. See U.S. v. Watson, 669 F.2d 1374 (11th Cir.1982); U.S. v. Marszalkowski, 669 F.2d 655 (11th Cir.1982). There was no basis on which to suppress the testimony of the agents relating to the properly-made seizure. Jackson was advised of his Miranda rights and declined to sign a waiver. The only post-warning statements made by Jackson were that he would not sign anything without consulting an attorney, and that he did not know what was in the envelope. The first statement was not inculpatory and was not made in response to interrogation but in response to the agents' request to initial the envelope. The second statement was exculpatory and was not the product of interrogation but was volunteered by defendant.

In the jury trial defendant testified that Snyder had told him that he would be giving him football tickets and video game passes in appreciation for quick processing of the loan. He stated that when Snyder handed him the envelope he thought it contained the tickets and passes, but when the FBI agents entered, took him into custody, and demanded production of the envelope it became apparent to him that Snyder had "done something different" and had not placed tickets and passes in the envelope, so that when he was arrested and denied knowing what was in the envelope he in fact did not know what the envelope contained. On cross-examination the prosecution brought out Jackson's statement to the agents that he did not know what was in the envelope. This post-arrest statement, volunteered immediately after arrest, was admissible to refute the defendant's contradictory testimony that when he was handed the envelope he thought it contained tickets and passes. See Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). Defendant asserts that there was no contradiction between his original statement--that he thought the envelope contained tickets and passes--and his later statement--that he did not know what it contained. This assertion is based upon his testimony describing his subjective and uncommunicated mental process, i.e., that following the appearance of the FBI agents, his arrest, and the demand for the envelope he concluded that Snyder must have done something other than what was promised and thus he did not know what was in the envelope. The prosecution does not lose its right to introduce a contradictory statement because the defendant in direct examination attempts to explain away the contradiction by describing his uncommunicated state of mind in making one of the statements.

Defendant contends also that his post-arrest silence--his failure to say that he thought the envelope contained tickets and passes--was improperly used against him. This...