U.S. v. Lee

• Decision Date: 05 May 1988
• Docket Number: 87-5119,Nos. 87-5115,s. 87-5115
• Citation: 846 F.2d 531
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brad Dong LEE, James Young Lee, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 531

846 F.2d 531

UNITED STATES of America, Plaintiff-Appellee, v. Brad Dong LEE, James Young Lee, Defendants-Appellants.

Nos. 87-5115, 87-5119.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 1988.

Decided May 5, 1988.

Mark E. Beck, Anthony A. DeCorso, Beck & DeCorso, Robert Corbin, Sharenow & Corbin, Los Angeles, Cal., for defendants-appellants.

David A. Sklansky, Asst. U.S. Atty., Criminal Div., Los Angeles, Cal., for plaintiff-appellee.

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

Before SNEED, HUG and ALARCON, Circuit Judges.

SNEED, Circuit Judge:

In this consolidated appeal, James and Brad Lee appeal their convictions on eleven

counts of bribery of public officials and conspiracy to bribe public officials under 18 U.S.C. Secs. 201(b) and 371. We affirm.

I. FACTS AND PROCEEDINGS BELOW

Brad Lee was the president and James Lee was the on-site manager of Western Building Cleaning Company ("Western"). Western had a contract with the United States Navy to perform custodial work at the Long Beach Naval Shipyard. The Navy employed civilian inspectors to review whether or not Western had correctly performed the various tasks it had contracted to perform. If an inspector determined that a task had not been performed, he would write up a deduction on a discrepancy report or "chit." At the end of each month the Navy would reduce its payments to Western under the contract by an amount calculated from the chits.

The Lees decided to pay the inspectors to reduce the number of deductions against Western, thus increasing Western's profitability. According to the government, James Lee began to cultivate a relationship with one of the government inspectors, Felix Baluyot, in Feburary 1984, soon after Western began working at the shipyard. James Lee bought meals for Baluyot, entertained him at clubs, and paid for repairs on his car. Brad Lee took Baluyot to Las Vegas and gave him $300 for gambling.

In July 1984, according to the government, Brad Lee and Baluyot had a meeting at which they agreed that Baluyot would keep his monthly deductions below $500 in exchange for payments of $400 a month. Despite observing deficiencies warranting at least $2000 in deductions a month, Baluyot kept his deductions under the $500 level agreed upon.

While this arrangement continued the Lees involved Baluyot in an attempt to make a similar deal with another government inspector, Richard Dutton. Dutton refused an invitation to dinner from Brad Lee, and when asked to meet with the Lees he brought along his supervisor. The Lees at that meeting and at later encounters asked for more "cooperation" from Dutton. After a few of these encounters, Dutton went to subsequent meetings equipped with a body wire provided by the Naval Investigative Service (NIS) and taped the conversations. During at least one of these meetings, Brad Lee threatened to report to Dutton's supervisors that Dutton had taken bribes from the previous contractor if Dutton did not cooperate. Dutton continued to refuse to alter the amount of deductions he wrote. The Lees then convinced Baluyot to approach Dutton more directly about accepting bribes to reduce deductions.

Dutton reported Baluyot's offer on behalf of the Lees to the NIS. The NIS instructed Dutton to play along and accept the bribes and reduce his deductions. From November 1984 through March 1985 James Lee gave Baluyot $500 a month to pay Dutton, of which Baluyot actually paid Dutton $300. In March 1985 Baluyot went to the Philippines for several weeks and Dutton approached James Lee and asked how he would get the April payment. From that time on, James Lee himself paid Dutton $500 a month.

The broad outlines of the events described above are not challenged by the Lees. Rather they seek to appear as victims, not culprits. They say they were coerced by Dutton. They say that Baluyot's testimony about the payments he received is unsubstantiated by any evidence. They say that Baluyot approached Dutton independently of Western, and that this is backed by tape-recorded conversations in which Baluyot told Dutton that not only was it his own idea to approach him about the payments, but that James Lee knew nothing about the bribes. This, the defendants assert, amounted to coercion of James Lee by Dutton, who allegedly stated that without his assistance, the Lees would not have gotten the government contract. Dutton, as the Lees see it, was "engaged in a pattern of coercive conduct toward them." Appellant James Lee's Brief at 8. Dutton's motive, in part, the Lees allege, was to retaliate for their firing of a close personal friend of Dutton's, Karen Watson.

During the trial the judge refused to admit several evidentiary proffers that would have tended to establish a motive for Dutton to harass Western. At the conclusion of the trial the judge read the following instruction to the jury:

In order to prove therefore that a defendant acted willfully as opposed to involuntarily in authorizing a payment the government must prove at least one of the following things beyond a reasonable doubt.

A, that a defendant was not motivated by fear of economic loss in authorizing the particular payment,

Or, B, the thing which the defendant sought to obtain by making the payment was not something he believed Western Building was legally entitled to have without making the payment,

Or, C, the defendant did not perceive the threatened economic loss to be of serious magnitude,

Or, D, that the defendant's fear was not such as to substantially impair his ability to exercise free choice,

Or, E, and finally, the defendant was aware of reasonable alternatives to making the payment and chose to not pursue these alternatives.

Brad Lee's Excerpt of Record (E.R.) at 155.

The jury began deliberating about 1:30 p.m. on March 20, 1987. At around 3:00 p.m. the jury sent a note to the judge asking him to reread the instructions "on the key elements of the law as they apply to conspiracy and bribery." E.R. at 156. The judge apparently read the instructions quoted above with only a few changes and then added:

One of the defenses raised by the defendants ... is that they authorized certain payments to be made only because they were told that unless the payments were made the government inspectors would assess deductions against Western Building in a manner not authorized by the custodial contract.... However, the fact as to whether or not the matters that were authorized by the custodial contract are [sic] for the defendants to prove in their defense because this is an affirmative defense to this charge.

E.R. at 157 (emphasis added). The defense objected to this added language, contending that it improperly shifted the burden of proof on the issue of intent to the defendants. The court, on the other hand, appears to have believed that economic coercion was an affirmative defense and not the means by which intent may be disproved. E.R. at 159-60.

A few hours later, the jury again asked for "Instructions on voluntary and involuntary aspects of bribery laws, sections A, B, C, D and E." E.R. at 162. The judge again read the instructions as originally given with minor modifications irrelevant to this appeal. He omitted the comments on affirmative defenses set forth above. At the urging of defense counsel the judge read, for the fourth time, "the portion of the coercion instruction regarding the alternative ways in which the government could satisfy its burden of proof, stressing that if the jury concluded that 'threats of economic loss were made by Richard Dutton to any of the defendants,' then in order to find the defendant guilty the jurors must all agree on one particular showing, from the list of alternatives, that the government had made beyond a reasonable doubt." Id.

The Lees were found guilty on each count of the indictment. On appeal the Lees argue that (1) the court erroneously instructed the jury that the defendants had the burden of proof on the issue of coercion; (2) the court abused its discretion in refusing to admit evidence that would have showed a pattern of coercion by Dutton; and (3) the court abused its discretion in refusing to give the jury instructions on entrapment by the government. We address these contentions in turn.

II. JURISDICTION

The district court had jurisdiction under 18 U.S.C. Sec. 3231 (1982). This court's jurisdiction rests on 28 U.S.C. Sec. 1291 (1982).

III. STANDARD OF REVIEW

A district court's formulation of jury instructions is reviewed for abuse of discretion. Decisions regarding the relevancy of evidence are also reviewed for abuse of discretion. United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.), cert. denied, 454 U.S. 830, 847, 102 S.Ct. 125, 165, 70 L.Ed.2d 106, 135 (1981). And failure to give instructions on entrapment of defendants by the government is reviewed for abuse of discretion as well. United States v. Busby, 780 F.2d 804, 806 (9th Cir.1986).

IV. DISCUSSION

A. Jury Instructions

The Lees' basic defense theory is that the specific intent necessary to prove the crime of bribery under 18 U.S.C. Sec. 201 was negated by their fears that they would lose their contract with the government if they did not pay off government inspectors. That is, economic coercion by the bribe taker legally excuses the bribe giver. ¹ That theory, the Lees contend, was not properly presented to the jury. As already indicated, they argue that the jury instructions given by the judge on his second reading improperly shifted the burden of proof on the question of intent to the defense. The government's response is in three parts. First, it contends that the defendants were not entitled to an instruction on economic coercion in the first place, so whether it was improperly given is irrelevant. It argues that by the clear language of the bribery statute there can be no such defense and that the cases relied upon by the defendants are...