U.S. v. Long, 92-6799
| Decision Date | 25 February 1994 |
| Docket Number | No. 92-6799,92-6799 |
| Citation | 19 F.3d 1430 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES OF AMERICA, Plaintiff-Appellant, v. Jefferson Marion LONG, Jr., a/k/a Bud, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the District of South Carolina, at Columbia. Falcon B. Hawkins, Chief District Judge. (CR-91-384)
Alfred William Walker Bethea, Jr., Asst. United States Atty., Florence, South Carolina, for Appellant.
Thomas Casey Brittain, George M. Hearn, Jr., Hearn, Brittain & Martin, P.A., Conway, South Carolina, for Appellee.
John S. Simmons, United States Atty., Florence, South Carolina, for Appellant.
Before RUSSELL and WIDENER, Circuit Judges, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
The government appeals an order of the district court granting the defendant, Jefferson Marion Long, a new trial pursuant to Federal Rule of Criminal Procedure 33. The sole issue before us is whether the district court properly granted Long a new trial where tapes, which were taken to the jury room and which were conditionally admitted as evidence of a conspiracy (co-conspirators' statements), became impermissible hearsay when the court granted an acquittal on the conspiracy count. The government argues that a new trial was not necessary because the evidence was properly before the jury as background evidence on the substantive count or, in the alternative, any error was harmless. We agree that it was prejudicial error for the jury to have the tapes before it during deliberations on the remaining substantive count where a prima facie conspiracy had not been proven and no curative instruction was given. 1 We affirm.
The charges against Senator Long arose out of "Operation Lost Trust", a Federal Bureau of Investigation (FBI) sting operation targeted at the South Carolina General Assembly during the 1990 term. See generally United States v. Bailey, 990 F.2d 119 (4th Cir.1993), for background. The FBI began the operation after receiving information that certain members of the Legislature were involved in illegal drug activity and public corruption. We limit the facts to events involving Senator Long. 2 In April 1989 Ron Cobb, a powerful lobbyist and former state legislator, agreed to cooperate with the government after he was arrested in a drug sting. In order to investigate allegations of legislative extortion, the FBI devised a plan in which Cobb would pose as a lobbyist representing a group of wealthy investors who wanted to see a parimutuel betting bill passed in South Carolina. Cobb was to solicit support, in return for money, from those legislators he had paid off in the past and those who voluntarily approached him. Audio and videorecording equipment was set up in Cobb's office and in his room at the Town House Hotel where most of the Legislature stayed and conducted a great deal of informal lobbying. Cobb wore a body recorder when live monitoring was not possible.
House member Bob Kohn accepted a bribe from Cobb early on in the sting and in an April 26, 1990 audio and videotaped meeting Cobb urged Kohn to solicit the support of members of the Senate Judiciary Committee in order to get the bill out of the committee and into the full Senate. Long was mentioned as someone who might support it. Several days later in another taped conversation with Cobb on May 1, 1990, Kohn offered to talk to Bud Long and Rick Lee, both members of the Senate Judiciary Committee. Trial testimony conflicted as to what was actually said during Kohn's May 1 afternoon meeting with Long. On May 2, Kohn reported to Cobb in an audiotaped conversation that he had spoken to Long. During the week of May 8th, Cobb and Kohn met with Lee and offered him money to get the bill out of Long's committee. Lee then took an informal poll to gauge support. Cobb testified that Long approached him just a few days later on May 10. He reported this to the FBI and was authorized to tape Long. On the morning of May 17th Long summoned Cobb to the Senate. An audiotape of this meeting was introduced at trial. The government contended that during this conversation Long requested $2800.00 to make his house payment in return for his vote on the parimutuel bill. Long argued, and was supported by Cobb's testimony, that he had already cast his vote on the bill and that he had only requested the help of Cobb, a long-time friend and business associate, in raising $2800.00 to make his house payments as he was experiencing financial difficulty. Cobb informed the FBI of the meeting and was authorized to directly offer Long a bribe. That afternoon Cobb asked Long to vote the bill out of Committee. Long replied that he had already voted for the bill. Cobb gave Long $2800 several days later on May 22. The government contended this act constituted acceptance of bribe, which Long denied.
In late June, Kohn approached Long during a special Senate session and tried to get him to incriminate himself on tape, but failed in the effort. On the tape Long appears to be unaware of any agreement or unusual circumstances between the two. During an interview with the FBI on July 17, Long denied that he had received any cash payments from any lobbyist.
On August 20, 1991 Long was charged in a two-count indictment with conspiracy to violate the Hobbs Act, 18 U.S.C.Sec. 371, and a substantive violation of the Hobbs Act, 18 U.S.C. Sec. 1951. The trial began on November 15, 1991. At the close of the government's case, the district court entered a judgment of acquittal on the conspiracy count, stating that no reasonable jury could conclude beyond a reasonable doubt from the evidence presented that Long had knowingly joined a conspiracy. The defense immediately made a motion for acquittal on the substantive count or, in the alternative, a mistrial, stating that the jury had heard so much conspiracy evidence that they could not fairly decide the substantive count. The court stated that it did not see any problem with the spillover at that time and indicated it would give a limiting instruction on the conspiracy evidence in its charge to the jury. Long argued that no limiting instruction could sufficiently remove the taint by association created by the hearsay evidence presented by the government on the conspiracy count. When the jury returned they were informed that the conspiracy count was no longer part of the case and that they were not to consider it. No instruction to disregard the conspiracy evidence was given.
Long chose to put on no evidence. On November 23, 1991, after a charge conference the court gave instructions on the substantive count for violation of the Hobbs Act and the jury retired to deliberate. They returned with a guilty verdict. Long filed general post-trial motions which included an allegation that the conspiracy evidence was so prejudicial to defendant that no remedy other than a mistrial was sufficient. A hearing on the motions was held on January 22, 1992. As the hearing began Long's defense counsel filed a memorandum in support of the general motions which asserted that error had been committed when tapes, presented to the jury during trial as evidence of the conspiracy, were sent to the jury room for deliberations with no specific limiting instruction. There was some confusion at the hearing as to which tapes were being objected to and precisely what statements in them prejudiced Long on the substantive count. At the time of the hearing no one had any transcripts from trial.
Four months later on March 26, 1992, after the court was able to review the transcripts, it issued an order granting Long's motion for a new trial. The court explained that evidence, consisting of four tapes containing alleged co-conspirators' statements, which was properly admitted in the case so long as the conspiracy count survived, became improper inadmissible hearsay as a result of the judgment of acquittal on that count. These tapes went to the jury and to its deliberation room in error. The court noted that through "sheer oversight" it had failed to give its planned instruction concerning evidence conditionally admitted on the conspiracy count and that its instruction to disregard the conspiracy count was insufficient to cure the prejudice to Long. It granted a new trial. The government's motion for reconsideration was denied on July 2, 1992. This appeal followed.
During several points in the early stages of the trial, the government attempted to introduce surveillance tapes of the conversations between Cobb and other individuals. The defense objected to four of the tapes which involved discussions among either government informant Cobb and then legislators and alleged co-conspirators Kohn and Taylor or between Cobb and Kohn. They argued that the tapes contained hearsay statements which were not made in the furtherance of any conspiracy and, in any case, were irrelevant and unduly prejudicial to the defendant. The court conditionally admitted these four tapes under the co-conspirator statements exception to the hearsay rule. Fed.R.Evid. 801(d)(2)(E). A brief description of the tapes at issue is helpful.
Cobb testified first for the government. The April 26 and May 15 tapes were admitted while he was on the stand. Kohn was the last government witness and the May 1 and May 2 tapes were admitted while he was on the stand. In the April 26 tape Kohn, Cobb, and Taylor were discussing their list for supporters of the parimutuel bill. In a conversation as to which legislators Cobb or Taylor might be able to recruit, Cobb said, "Bud Long, that'll get some play." Kohn joined the...
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