U.S. v. L'Hoste

• Decision Date: 10 January 1980
• Docket Number: 79-1606,Nos. 78-5593,s. 78-5593
• Citation: 609 F.2d 796
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert J. L'HOSTE, R. J. L'Hoste & Company, Inc., Clarence Eugene Rogers and Marvin Cochran, Defendants-Appellants. In re UNITED STATES of America, Petitioner.

Page 796

609 F.2d 796

UNITED STATES of America, Plaintiff-Appellee, v. Robert J. L'HOSTE, R. J. L'Hoste & Company, Inc., Clarence Eugene Rogers and Marvin Cochran, Defendants-Appellants In re UNITED STATES of America, Petitioner.

Nos. 78-5593, 79-1606.

United States Court of Appeals Fifth Circuit.

Jan. 10, 1980.

Julian R. Murray, Jr., Henry E. Braden, IV, New Orleans, La., for R. L'Hoste & R. J. L'Hoste Co. in No. 78-5593 and for U. S. in No. 79-1606.

Michael H. Ellis, New Orleans, La., for Rogers & Cochran.

John P. Volz, U. S. Atty., Robert J. Boitmann, Asst. U. S. Atty., Chief, Appellate Section, Richard T. Simmons, Jr., Asst. U. S. Atty., New Orleans, La., for United States plaintiff-appellee in No. 78-5593.

Richard T. Simmons, Jr., Asst. U. S. Atty., New Orleans, La., for defendants-appellants.

Charles Schwartz, Jr., for United States.

On Petition for Writ of Mandamus to the United States District Court for the Eastern District of Louisiana.

Before TJOFLAT and VANCE, Circuit Judges, and ALLGOOD, ^* District Judge.

TJOFLAT, Circuit Judge:

Robert J. L'Hoste, R. J. L'Hoste & Company, Inc., Clarence Eugene Rogers, and Marvin Cochran appeal their convictions for conspiracy, 18 U.S.C. § 371 (1976), ¹ and racketeering, 18 U.S.C. §§ 2, 1962(c) (1976), ² arising out of their involvement in sewer construction contracts for Jefferson Parish, Louisiana. They challenge the sufficiency of the indictment, the method of jury selection, and the adequacy of the trial court's instructions to the jury. Consolidated with this appeal is the Government's petition for a writ of mandamus directing the trial court to order the forfeiture of L'Hoste's interest in R. J. L'Hoste & Company, Inc. under 18 U.S.C. § 1963(a) (1976). See page 809 Infra. We affirm the convictions and grant the petition for mandamus.

I

The history of this prosecution is convoluted and repetitious. On December 1, 1977, the federal grand jury in the Eastern District of Louisiana indicted thirteen defendants, including the appellants, for conspiracy and racketeering activity. After the defendants moved to dismiss the indictment for overbreadth and vagueness, the grand jury returned a superseding indictment on February 27, 1978, charging the same offenses and naming eleven defendants, including the appellants. The district court denied a motion to dismiss the superseding indictment, and trial commenced on March 13, 1978. The jury convicted the four appellants and another corporation on both the conspiracy and racketeering counts. ³ In subsequent proceedings, the court instructed the same jury to decide whether any property was subject to forfeiture under section 1963, but dismissed the jury when it became deadlocked. On the day of sentencing, the court granted on various grounds the defendants' motion for a new trial, criticizing in the process the complex nature of the indictment.

At this point the case was reassigned to another district judge. Meanwhile, in an attempt to remedy any infirmities that may have existed in the indictment, the Government obtained a third indictment, again charging the appellants with conspiracy and racketeering activity. The defendants moved for dismissal on grounds of vagueness and overbreadth. The motion was denied, and the defendants' petition for a writ of mandamus, asserting the same grounds, was rejected by this court. Due to the extensive publicity the case had received, the district court granted a motion for change of venue, and the trial was moved to Houston, Texas. Trial began on July 24, 1978. During the first week, defense counsel moved for a mistrial, claiming that this court's panel decision in United States v. James, 576 F.2d 1121 (5th Cir. 1978), Modified 590 F.2d 575 (5th Cir.) (en banc), Cert. denied, --- U.S. ----, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), prevented a district court from trying to a jury a conspiracy case, such as this one, without first holding a hearing, in the absence of the jury, to rule upon the admissibility of any out-of-court coconspirator statement the prosecutor might seek to introduce into evidence. The district court, in order to comply with the James mandate, granted a mistrial on July 28, 1978. A James hearing was conducted, and, on August 1, 1978, a third jury trial began.

The prosecution's evidence implicated the defendants in a labyrinthine plot of public bribery. Between 1970 and 1977, Jefferson Parish awarded sewer contracts on an emergency "no-bid cost-plus" basis on the recommendation of Ray Condon, the director of its Department of Sewerage and Drainage. These contracts, financed in large part with federal funds, would have been performed at a substantially lower cost had they been put out for competitive bidding. R. J. L'Hoste & Company, Inc. received seventy-seven percent of the emergency work, totalling over $5 million, through a scheme of kickbacks to Condon and others involved in awarding the contracts. Testimony indicated that the costs of these contracts were padded with excessive payrolls and machinery rentals. Job costs, and consequently R. J. L'Hoste & Company Inc.'s profits, were inflated further when L'Hoste, for no legitimate reason, directed that the work be delayed. One job that normally should have lasted a month was drawn out nearly eight months. Dilatory tactics included working at a slow pace, digging up good pipe, making unnecessary repairs, and stopping up water pipes. 1st Supp. Record, vol. 12, at 450, 478-81. During this time, employees occupied their working hours with such unproductive activities as resting under trees, going to the store or snowball stand, and sitting around shooting dice. Id. at 478-79. While on R. J. L'Hoste & Company, Inc.'s payroll, employees also did construction and landscaping work at Condon's residences. Id. at 453-56, 483-87. Some of the equipment contributing to the cost of the job was run with the clutch disengaged merely to make noise; some was run only at the times an inspector was present; some was simply inoperable. Id. at 456-57, 481-83, 504-06. The inflated rentals for the equipment were channeled to Condon, Frederick Hoth (consulting engineer for the Department of Drainage and Sewerage), and others through conduit rental companies in which they held interests.

Besides the rental scheme, the evidence showed L'Hoste's arranging for Condon and Hoth to take trips to such places as Acapulco, Las Vegas, and Hawaii, and providing other "perquisites," including gifts of interests in property purchased by L'Hoste. The defense attempted to show that the responsibility for the laggard pace and goldbricking rested with Carl Calamia, who had been general superintendent of R. J. L'Hoste & Company, Inc. before being fired and later testifying for the Government under a grant of immunity. The jury, however, was not persuaded that the defendants were inculpable; on August 9, 1978, after eight days of trial, it found all four of them guilty on both counts. The jury then was asked to determine whether L'Hoste maintained an interest in his company in violation of section 1962, and whether his interest allowed him to influence his company; the jury was advised, however, that the actual decision on forfeiture would be made by the court. The jury found that L'Hoste had maintained an interest that permitted him to influence R. J. L'Hoste & Company, Inc. in violation of section 1962.

The district court denied an array of post-trial motions and set sentencing for September 13, 1978, in New Orleans. L'Hoste received fines totalling $35,000 and a sentence of four years in prison, but the court declined to invoke the forfeiture provisions against him. R. J. L'Hoste & Company, Inc. was fined $35,000, Rogers was fined $2,500 and placed on probation, and Cochran received probation. From the judgments of conviction the appellants bring this appeal. The Government's petition for a writ of mandamus arises from the district court's refusal to order a forfeiture of L'Hoste's interest in his company.

II

Appellants raise several points of error concerning the indictment, the method of jury selection, and the court's instructions to the jury. We address these issues in turn.

A. The Sufficiency of the Indictment

Appellants first contend that the indictment under which they were convicted is unconstitutionally broad and vague and violative of Fed.R.Crim.P. 7(c)(1), which requires that the indictment be "a plain, concise and definite written statement of the essential facts constituting the offense charged." To assess the validity of appellants' challenge, we must evaluate the indictment under the two-prong test laid down by the Supreme Court in Hamling v. United States, 418 U.S. 87, 117, 97 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). Under this test, the indictment (1) must contain the elements of the offense and fairly inform the defendant of the pending charges and (2) must enable the defendant to plead acquittal or conviction to bar any future prosecution for the same offense. United States v. Welliver, 601 F.2d 203, 207 (5th Cir. 1979); United States v. Guthartz, 573 F.2d 225, 227 (5th Cir.), Cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978); See United States v. Diecidue, 603 F.2d 535, 539-548 & n. 1 (5th Cir. 1979).

Here, the Government modified the indictment twice in an attempt to meet the requirements of Hamling and rule 7(c)(1). Although the indictment charged only one count of conspiracy and one count of racketeering activity in a total of fourteen pages, its length and complexity were necessitated, we think, by the nature of the crimes charged. Both counts alleged violations of Louisiana and federal law spanning more than seven-and-one-half years and involving more than a dozen different parties. Due to the intricate interrelationships among the many parties within this extended time frame, a lengthy indictment was required to set forth the elements of the offenses charged, to give the defendants adequate...