U.S. v. Lipscomb
| Citation | 299 F.3d 303 |
| Decision Date | 12 July 2002 |
| Docket Number | No. 00-10461.,00-10461. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Albert Louis LIPSCOMB, Defendant-Appellant, Cross-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Susan B. Cowger (argued), Dallas, TX, for U.S.
Shirley L. Baccus-Lobel (argued), Law Offices of Shirley Baccus-Lobel, William M. Ravkind (argued), Ravkind & Ravkind, Dallas, TX, for Lipscomb.
Appeals from the United States District Court for the Northern District of Texas.
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
Albert Lipscomb, a former member of the Dallas City Council, appeals his convictions for conspiracy and program bribery, in violation of 18 U.S.C. § 666 ("§ 666"). Whether he raises a constitutional challenge to his convictions, and, if so, how we should rule on that challenge, are questions that have divided our panel three ways, as will become clear from our separate writings. Despite this tripartite fractionation, however, different majorities of the panel conclude that (1) the question of § 666's as-applied constitutionality is properly before the panel and should be addressed; (2) the district court had subject-matter jurisdiction of this criminal bribery case against Lipscomb; and (3) the court abused its discretion in transferring the trial sua sponte over Lipscomb's objections. We therefore reverse his conviction vacate his sentence, and remand for a new trial.
Both Lipscomb's conduct and particular jurisdictional facts are important to the varying views of the members of this panel. We therefore recount them in considerable detail.
Lipscomb served on the Dallas City Council (the "Council") from 1984 to 1993 and again from 1995 until 2000. During his first period of service, Lipscomb vigorously opposed any measure favorable to taxicab companies, including Yellow Cab and Checker Cab (together, "Yellow Cab"), both owned by his co-conspirator, Floyd Richards. Lipscomb's animus against cab companies apparently was grounded in a belief that cab companies perennially failed to serve the minority community adequately.
During his second period of service on the Council, however, Lipscomb demonstrated a considerably kinder disposition toward cab companies, especially Yellow Cab. In 1994, during Lipscomb's hiatus from the Council, Richards asked Lipscomb to help improve Yellow Cab's reputation in the minority community and offered to pay Lipscomb $1,000 a month in cash for that help. Lipscomb assented to this proposal. Richards and Lipscomb agreed to continue this arrangement as long as it was mutually agreeable. All this transpired orally.
Richards continued to make the monthly payments to Lipscomb after he was re-elected to the Council. At times, Richards would receive phone calls from Lipscomb indicating that he needed a payment, after which Lipscomb would visit Yellow Cab's office and receive cash that Richards took from the company safe. Sometimes during these meetings, Richards and Lipscomb would discuss taxicab issues then pending before the Council. The government alleged that in addition to making these monthly payments to Lipscomb, Richards gave Lipscomb free use of cars, free cellular telephone service, and free cab rides worth more than $3,300.
When Lipscomb ran again, his advisers heard Richards declare that he was willing to spend up to $30,000 to get Lipscomb elected. When Richards learned that corporations could not contribute to campaigns and that individuals could contribute no more than $1,000, however, he decided to "lend" $20,500 to a business owned by Lipscomb's daughter and son-in-law. That money was intended by all concerned to help fund Lipscomb's campaign, and it did so; but Lipscomb did not report the campaign "loan" or any of the payments in his campaign finance reports or his personal financial statements.
Richards testified that although he never made the quid pro quo explicit, he expected that, in return for the monthly payments and the campaign funding, Lipscomb would cast votes favorable to Yellow Cab. Richards testified further that he and Lipscomb had an understanding, and that Richards was satisfied that Lipscomb knew that the payments would stop if he voted the wrong way.
Lipscomb's support of Yellow Cab went far beyond the casting of favorable votes at meetings of the Council. Over time, he and Richards discussed each of the taxicab issues on which Lipscomb allegedly was influenced by this bribery: (1) operating authority and fleet increases, (2) location of dispatch offices, (3) age limits and inspections, and (4) insurance ratings. Lipscomb had opposed Yellow Cab on these issues before 1994, but when he returned to the Council, he supported that company vigorously and often.
For example, in 1994 Lipscomb, as a private citizen, had spoken out against authority for Yellow Cab and two other cab companies to operate in Dallas. Once he returned to the council, though, he supported Yellow Cab's requests for increases in the size of its cab fleets. Yet when cab companies unaffiliated with Richards sought authority to operate in Dallas, Lipscomb urged that their applications be removed from the council's agenda. When another cab company's request for operating authority was taken up by the council, Lipscomb tried to require a voice vote on the matter.
Yellow Cab also needed relief from a city ordinance requiring cab companies to maintain their dispatch offices inside the Dallas city limits. After a city staffer learned that Yellow Cab was violating this policy, she sought to enforce it, but the Council referred the matter to its Transportation Committee. Even though Lipscomb did not serve on that committee, he attended its meeting and browbeat the staffer, going so far as to ask her when she would retire. Eventually, with Lipscomb's encouragement, the Council permitted cab companies to operate dispatch offices in the Dallas suburbs, thus legitimating Yellow Cab's office, the only one in violation, in which Yellow Cab had invested $15,000.
Because Yellow Cab had the newest fleet among the cab companies serving Dallas, the City was encouraged by Yellow Cab energetically to enforce against its competitors the City's age limit on vehicles for hire and its requirement that they be inspected. In 1992, Lipscomb had favored relaxing both rules, but in 1996, after he was told by Richards that he wanted stricter enforcement, Lipscomb began to support age limits on sedan-style limousines similar to the limits that applied to taxicabs. He also sought to remove older shuttles and limousines from service more quickly, and he opposed the Council's effort to revisit its earlier vote — favorable to Yellow Cab — to approve stricter age limits.
Lipscomb also acted on Yellow Cab's behalf with respect to insurance issues. Yellow Cab lobbied the Council to require that the insurance coverage mandated for taxis be written by insurers with favorable financial ratings. This proposal proved to be controversial: The City's Director of Human Services, whose department handled insurance matters, was concerned that a rating requirement might favor large firms and exclude small businesses owned by minorities or women. Lipscomb nevertheless sought to put the rating requirement on the Council's agenda, and both seconded and voted for a motion to increase the minimum rating.
In sum, Lipscomb energetically used many of the tools at the disposal of a Council member — his vote, his oversight authority, his agenda-setting power, and his other parliamentary privileges — to support policies favorable to Yellow Cab, even though these policies conflicted with his previous positions.
During Lipscomb's second period of council service, the City, through many of its agencies and departments, received substantial federal funds. In the year ending in September 1996, Dallas received $44.3 million and spent $48.1 million in federal financial assistance which funded a wide range of joint priorities: community development, farmer's market infrastructure, emergency shelter, housing, community policing, airport and freeway improvements, arts development, pollution control, emergency management, interlibrary cooperation, child immunization, homeless health care, and substance abuse control among others. Federal support in 1996 dwarfed state support, which totaled only $3.7 million received and $3.1 million spent. Other years were similar: in 1997, the city received $54.3 million and spent $53.3 million in federal funds, but received only $3.0 million and spent $3.8 million in state funds.
Testimony of the city's chief financial officer showed that in Dallas's efforts to obtain and then allocate federal funds, the Council played an integral role:
Q. And once the City gets the Department of Housing money or grant funds, does the City then disburse those funds?
A. Yes, we do.
Q. And is the disbursement by approval of a City Councilmember or the City Council at large?
A. If the individual expenditure is greater than $50,000, or $15,000 in the case of professional services, it would come back to the Council for approval of that specific contract.
Q. And does that frequently happen?
A. Yes, uh-huh.
Q. All right. And, in fact, does the Council have to approve, vote for and approve the application to HUD and the other agencies of the federal government to get federal money?
A. Yes. They vote for the application and the acceptance of the money.
The Council as a whole thus controlled — and individual council members influenced — the City's applications for, and receipt and expenditure of, at least forty million federal dollars each year.
The government secured a lengthy indictment against Lipscomb. Counts 2 through 33 charged him with specific substantive bribery violations of § 666(a)(1)(B) and charged Richards with aiding and abetting those...
To continue reading
Request your trial
-
United States v. Fitzgerald
...Even the Fifth Circuit has acknowledged that Phillips added "extra-textual teeth" to the "agent" definition. United States v. Lipscomb , 299 F.3d 303, 313 (5th Cir. 2002). In fact, even the Phillips panel itself seems to insist that it is not adding to the definition of "agent." See Phillip......
-
Pace v. Bogalusa City School Bd.
...207, 107 S.Ct. 2793 (quoting United States v. Butler, 297 U.S. 1, 66, 56 S.Ct. 312, 80 L.Ed. 477 (1936)). See also United States v. Lipscomb, 299 F.3d 303, 319 (5th Cir.2002) ("Congress's spending power, like its power to tax, is `to provide for the general welfare,' and is therefore untram......
-
State v. Peters
...Moreover, we do not view a federal Senate Report as an exact and complete reflection of congressional intent. See United States v. Lipscomb, 299 F.3d 303, 326 (5th Cir.2002) ("The Senate [R]eport on the crime bill, printed in 1983, can be taken as an authoritative statement of the Senate Ju......
-
U.S. v. Sunia
...Opp'n at 8 (citing various authorities in support of the government's proffered reading of § 666(a)(1)(A)))3 is United States v. Lipscomb, 299 F.3d 303 (5th Cir.2002). In that case, "Albert Lipscomb, a former member of the Dallas City Council, appealed] his convictions for conspiracy and pr......