U.S. v. Mathews

• Decision Date: 29 October 1986
• Docket Number: No. 85-2904,85-2904
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frederick MATHEWS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 325

803 F.2d 325

UNITED STATES of America, Plaintiff-Appellee, v. Frederick MATHEWS, Defendant-Appellant.

No. 85-2904.

United States Court of Appeals, Seventh Circuit.

Argued June 12, 1986.

Decided Oct. 9, 1986.

Rehearing and Rehearing En Banc Denied Oct. 29, 1986.

Jeffrey A. Kaufman, Gimbel Gimbel & Reilly, Milwaukee, Wis., for defendant-appellant.

Jan E. Kearney, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before BAUER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.

BAUER, Chief Judge.

The defendant, Frederick Mathews, was convicted of receiving money as an official of the Small Business Administration in violation of 18 U.S.C. Sec. 201(g). He appeals, alleging three grounds for reversal: that the district court erred by refusing to allow Mathews to claim entrapment unless Mathews admitted all elements of the crime, including the element of intent; that the district court erred in excluding for cause several veniremen who expressed disapproval of tape recording conversations without the knowledge of all parties; and that the district court erred in denying Mathews' motion for a mistrial based on the prosecution's use of peremptory strikes to remove all black veniremen from the jury. We find the district court committed no error and affirm its judgment of conviction.

I.

Mathews was employed in the Milwaukee office of the Small Business Administration ("SBA") as a Business Development Specialist in charge of the "8A Program." The 8A Program is designed to aid small businesses owned by socially and economically disadvantaged concerns. Applicants for the 8A Program become clients of the SBA. With the SBA serving as primary contractor and the 8A client acting as subcontractor, the SBA attempts to procure government contracts on behalf of 8A clients and to help them perform on the contract.

The charge of which Mathews was convicted concerns Mathews' relationship with James DeShazer. DeShazer is the president and owner of Midwest Knitting Mills. Midwest Knitting Mills was a participant in the 8A Program and obtained several contracts through the SBA. Mathews was DeShazer's main contact at the SBA.

The evidence at trial showed that Mathews accepted loans from DeShazer (Mathews says two, the government says more). Mathews claims the loans, including the loan involved in this case, were personal loans from DeShazer unrelated to Mathews' duties at the SBA. The government and DeShazer claim the loans were gratuities required by Mathews to obtain his cooperation in SBA matters.

In support of its theory, the government introduced evidence that included tape recordings of conversations between Mathews and DeShazer discussing the loan that resulted in Mathews' arrest and prosecution. These conversations had been covertly taped by DeShazer under the direction of the FBI which began investigating Mathews in response to a complaint by DeShazer to a Navy purchasing agent regarding Mathews' repeated requests for loans.

The jury believed the government's version of the facts and convicted Mathews of the charge of accepting a thing of value as a public official for an official act to be performed by him, a violation of 18 U.S.C. Sec. 201(g). The trial judge entered judgment accordingly and sentenced Mathews to three years probation, the first two years to be served under house arrest. Mathews appeals.

II.

Mathews claims the trial court erred in denying his motion in limine to present evidence on the defense of entrapment. Mathews asks us to reconsider the rule in this circuit that requires a defendant who wishes to plead entrapment to admit all elements of the crime, including the element of intent. United States v. Rodgers, 755 F.2d 533, 550 (7th Cir.1985), cert. denied, --- U.S. ---, 105 S.Ct. 3532, 87 L.Ed.2d 652 (1985). He acknowledges that this rule is in accord with the Third, Sixth, and Tenth circuits, but argues that a better rule would require a defendant to admit only the acts of a crime, not the intent, before being allowed to plead entrapment. Mathews cites cases from the First, Fifth, and D.C. circuits as examples of decisions that follow this rule. United States v. Caron, 588 F.2d 851 (1st Cir.1978); United States v. Henry, 749 F.2d 203 (5th Cir.1984) (en banc); United States v. Kelly, 748 F.2d 691 (D.C.Cir.1984). Mathews does not ask us to go so far as those circuits that he claims allow a defendant to deny all elements of the crime and at the same time plead entrapment. United States v. Demma, 523 F.2d 981 (9th Cir.1975); Crisp v. United States, 262 F.2d 68 (4th Cir.1958).

Although we acknowledge some diversity of opinion among the circuits, we see no reason to change our rule requiring a defendant to admit all elements of the crime before being allowed to plead entrapment. When a defendant pleads entrapment, he is asserting that, although he had criminal intent, it was "the Government's deception [that implanted] the criminal design in the mind of the defendant." United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed.2d 366 (1973); United States v. Rodgers, 755 F.2d 533, 550 (7th Cir.1985). We find this to be inconsistent per se with the defense that the defendant never had the requisite criminal intent. We see no reason to allow Mathews or any defendant to plead these defenses simultaneously.

III.

Mathews also complains that the exclusion for cause of several veniremen who expressed misgivings about covert tape recordings created a jury skewed in favor of the government and unrepresentative of the community. He argues that the trial judge should have conducted a more extensive inquiry into the basis for the veniremen's objection to such evidence in order to ascertain whether the veniremen felt they could give the evidence its proper weight despite their initial reservations.

We disagree with Mathews for two reasons. First, a trial judge's questioning during voir dire is subject to limited review. In light of the special circumstances of the situation (to be outlined below) and the great deference that we accord trial judges in this area, Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841, 844 (1985), we see no reason to overturn the judgment of the trial court on the basis of the exclusion of these veniremen. Second, the trial judge called a side bar during voir dire to give Mathews' counsel the opportunity to suggest an appropriate route for the trial court to take regarding these veniremen. Mathews' counsel expressed no objection and asked the court to proceed as it had been before the side bar. We find it difficult to accept Mathews' belated allegations on appeal that the judge's action taken at Mathews' request denied him his sixth amendment right to an impartial jury representing a cross-section of the community.

A.

The trial judge was forced to deal with a difficult and all too common situation during voir dire. The court had properly and methodically questioned the veniremen as a group about their limitations and biases regarding the case. After its first twenty-two questions, the court had excused only six persons for cause. The court's twenty-third question inquired whether the veniremen had "any concern about tape recording conversations when one party is not aware that it is being recorded." (Trial Transcript at 43). One veniremen expressed concern, and the court questioned her in depth about whether her reservations about the evidence-gathering method would interfere with her ability to weigh that evidence, whether she still had reservations knowing that she would only hear the tapes if they were found admissible by the court according to the rules of evidence, and whether her reservations would remain regardless of the nature of the investigation. When the veniremen continued to express doubt, the judge dismissed her.

As acknowledged by counsel for both sides, what followed was a classic case of potential jurors jumping on the opportunity to avoid jury duty by suddenly realizing that they too shared the bias of the venireman just dismissed. Several veniremen immediately brought their newly discovered problem with accepting covert tape recordings to the attention of the trial judge. The judge dismissed the first bandwagoner without further questioning, knowing the veniremen had heard the examination of the venireman just dismissed. The judge dismissed the second and third followers after they offered short explanations of the basis for their objections to taping. When a fourth venireman suddenly discovered a deep-seated distaste for covert taping, the judge questioned her in depth and reiterated that tapes might not even be introduced into evidence and would only be heard if they were found admissible according to the rules of evidence. The veniremen then relented, declared she could give the evidence appropriate weight, and was retained on the panel. Undeterred, a fifth venireman took up the mantle and voiced objections to covert taping. The court was examining him further when still another venireman interrupted with questions regarding the nature of the tapes.

Seeing the direction that the voir dire was going, the judge called a side bar. As represented to this court at oral argument by both counsel (both of whom also served as trial counsel), the judge asked both parties for their preferences as to the appropriate manner for the court to deal with this mass exodus of potential jurors. Mathews' counsel admits that he did not object to the actions that the judge had taken up to that point and in fact encouraged him to continue.

The judge then dismissed the venireman he had been questioning and dealt with the remaining four veniremen who claimed that they too disliked covert taping. The judge questioned the first three of these four in depth, released one and kept two. The final objecting venireman was also released.

With the supply of potential jurors now exhausted, the court called a recess. The following day, the...