U.S. v. Muldoon

• Decision Date: 30 April 1991
• Docket Number: 90-5023,Nos. 90-5020,s. 90-5020
• Citation: 931 F.2d 282
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas E. MULDOON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Thomas E. MULDOON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 282

931 F.2d 282

UNITED STATES of America, Plaintiff-Appellee, v. Thomas E. MULDOON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Thomas E. MULDOON, Defendant-Appellee.

Nos. 90-5020, 90-5023.

United States Court of Appeals Fourth Circuit.

Argued Oct. 31, 1990.

Decided April 30, 1991.

Albert James Ahern, Jr., Alexandria, Va., argued, for defendant-appellant.

Jack Hanly, Asst. U.S. Atty., argued (Henry E. Hudson, U.S. Atty., Joseph J. Aronica, William G. Otis, Asst. U.S. Attys., Alexandria, Va., on brief), for plaintiff-appellee.

Before SPROUSE, Circuit Judge, BUTZNER, Senior Circuit Judge, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

BUTZNER, Senior Circuit Judge:

Thomas E. Muldoon appeals a judgment entered on the verdict of a jury convicting him of three counts of bribery of a public official in violation of 18 U.S.C. Sec. 201(b), three counts of violating the Travel Act, 18 U.S.C. Sec. 1952, and conspiracy to commit these offenses and defraud the United States in violation of 18 U.S.C. Sec. 371. Finding no cause for reversal in his numerous assignments of error, we affirm.

I

Muldoon operated a consulting firm that paid money to a Marine Corps employee, Jack Sherman, who supervised award of some government defense contracts. From late 1981 through January of 1988, Muldoon received payments from Lee Telecommunications Corporation or Whittaker Corporation (collectively LTC) that he then paid to Sherman after he deducted from one-half to two-thirds as his own compensation. Muldoon was involved with several separate payments, and from time to time he would submit invoices from his consulting firm to conceal the bribes.

In the first scheme LTC paid Muldoon $75,000. Muldoon later paid Sherman $25,000 of this sum for Sherman's help to LTC in obtaining a government contract for the Data Link Emulator (DLE). Muldoon received $10,000, which he split with Sherman to expedite the DLE contract. The company paid $65,000 to Muldoon, who in turn paid one-third to Sherman to expedite the award of a contract related to the DLE. In September 1987, Muldoon entered into an agreement with LTC to pay him $2,000 monthly. He would then pass $1,000 of that payment to Sherman. This arrangement, however, was short lived because Muldoon protested there was not enough money in it for him. Shortly afterwards, in January 1988, LTC and Muldoon entered a new agreement. This time, LTC paid Muldoon $36,000, who paid $12,000 to Sherman for his help to LTC in connection with other contracts with the Marine Corps. In sum, Muldoon received approximately $188,000 from LTC, of which he paid Sherman approximately $65,000.

II

Muldoon assigns error to the district court's denial of his pretrial motion to suppress evidence obtained by wiretaps. He contends that the affidavit submitted with the initial application for a tap failed to show probable cause that he had committed any of the offenses mentioned in the affidavit. He emphasizes a sentence in the affidavit that acknowledged the investigator's ignorance of his background and status other than that provided by an informer, John Marlowe. Muldoon complains that the affidavit fails to show that other investigative procedures were inadequate. He also assigns error to the court's denial of an evidentiary hearing on his allegations that the affidavit was false and misleading.

To authorize a wiretap, there must be (a) probable cause to believe that a suspect has committed or is about to commit an offense, (b) probable cause to believe that communications concerning the offense will be obtained, and (c) a finding that normal investigative procedures are inadequate or reasonably appear inadequate. 18 U.S.C. Sec. 2518(3).

The affidavit discloses that Muldoon was doing much more than innocently collecting information from the Department of Defense and selling it to defense contractors. The affidavit disclosed that in a recorded conversation with Marlowe, Sherman, Muldoon's government contact, complained that Muldoon owed him $7,000 in payment for information Sherman had furnished Muldoon. Another recorded conversation disclosed that Muldoon had paid Sherman $6,000 on another deal for inside information. From Muldoon's conversations with another consultant, whose phone had been tapped by authority of a previous court order, the investigators learned, and the affidavit recounted, that Muldoon was planning to obtain information about another project to sell to defense contractors for which he would "have to pay the guy he takes care of...."

Wiretaps may be authorized for the detection of bribery of a public official. Sec. 2516(1)(c). To determine the sufficiency of a warrant, the reviewing court must ensure that the issuing officer had a substantial basis for determining from the totality of the circumstances that probable cause existed. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983). The affidavit disclosed sufficient facts to establish probable cause to believe that Muldoon had bribed a government employee and that he was scheming to pay another bribe for information that he could sell to defense contractors. The affidavit passes the test prescribed by Illinois v. Gates. See also United States v. Gallo, 863 F.2d 185, 191 (2d Cir.1988).

Contrary to Muldoon's complaint, the affidavit showed, as required by Sec. 2518(1)(c), that other investigative procedures were inadequate. Marlowe, who informed for the government, had been jailed on unrelated state convictions. He had been able to supply information to the government because he, too, was a consultant whom the other consultants trusted to traffic in Defense Department influence and information. But he was no longer available. The affidavit explained the difficulty of introducing another informant to Muldoon's coconspirators. The government's investigation showed Muldoon and other consultants conducted business by phone, making physical surveillance and search warrants inappropriate. "The showing of need [for the tap] is 'to be tested in a practical and commonsense fashion.' " United States v. Clerkley, 556 F.2d 709, 714 (4th Cir.1977) (citations omitted). The affidavit satisfies this test and complies with the statute.

To expose the alleged inadequacies of the affidavit, Muldoon requested an evidentiary hearing. He assigns error to the district court's denial of his motion. Muldoon criticizes the failure of the affidavit to report Marlowe's complete criminal record and to disclose that he was a paid informant. He says these omissions demonstrated that the affidavit is deliberately or recklessly false.

Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), explains that a defendant is entitled to an evidentiary hearing upon "substantial preliminary showing" that the affiant made "a false statement knowingly and intentionally, or with reckless disregard for the truth." The allegedly false statement must be necessary to the finding of probable cause. Muldoon has not satisfied the preliminary showing required by Franks. The affidavit disclosed that Marlowe had been convicted of two offenses and was sentenced to six years imprisonment in unrelated state proceedings. Actually Marlowe was convicted of five offenses. The discrepancy in the number of offenses, however, is immaterial. They were all similar, and the affidavit accurately reported his punishment. The affidavit fully disclosed that Marlowe was detected acquiring government information and selling it to contractors. Confronted with proof of his activities, he consented to provide information about bribery in the Department of Defense. The government paid Marlowe and his wife, but the payments were not mentioned in the affidavit. Their omission, though having some bearing on Marlowe's credibility, was not fatal to the showing of probable cause. Most of the information Marlowe provided did not depend on his credibility but, rather, on consensually recorded conversations that incriminated Muldoon.

We find no error in the district court's denial of Muldoon's motion to suppress the evidence obtained by wiretaps of his phone.

III

Muldoon assigns error to the district court's omission of three questions during the voir dire examination of the jury. He requested the court to inquire (1) whether any members of the panel would give a government witness more credence than a defense witness; (2) whether anyone would give greater weight to the testimony of a government investigator simply because of his position; and (3) whether any member of the panel or their close relatives worked for the FBI, IRS, United States Attorney, Commonwealth's Attorney, or any other investigative agency. Muldoon relies on United States v. Baldwin, 607 F.2d 1295, 1297-98 (9th Cir.1979), and similar cases. In Baldwin the court reversed a conviction that depended on the testimony of government agents because the court refused to ask whether any prospective juror would be unduly influenced by the testimony of a law enforcement officer.

A trial court has wide latitude in conducting voir dire. The court abuses its discretion only "where the court's restriction hinders a defendant's opportunity to make reasonable use of his challenges." King v. Jones, 824 F.2d 324, 326 (4th Cir.1987). Whether the exclusion of questions sought by a defendant gives rise to reversible error must be considered in the context of the entire case and the other inquiries the trial court made during voir dire. United States v. Gore, 435 F.2d 1110, 1113 (4th Cir.1970). Tested by these precepts, the court's conduct of the voir dire presents no reversible error.

Because Muldoon called no witnesses and declined to testify, there could be no comparison of defense and government witnesses. Refusal to grant Muldoon's first request was not error.

Baldwin, on which Muldoon relies,...