U.S. v. Primrose, 82-1842

• Decision Date: 30 September 1983
• Docket Number: No. 82-1842,82-1842
• Parties: 14 Fed. R. Evid. Serv. 282 UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Harold PRIMROSE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1484

718 F.2d 1484

14 Fed. R. Evid. Serv. 282

UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Harold PRIMROSE, Defendant-Appellant.

No. 82-1842.

United States Court of Appeals Tenth Circuit.

Sept. 30, 1983.

Gene Stipe (Anthony M. Laizure with him on brief), of Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks, McAlester, Okl., for defendant-appellant.

Gary L. Richardson, U.S. Atty., Muskogee, Okl. (Edward M. Kimmel, Asst. U.S. Atty., Muskogee, Okl., with him on brief), for plaintiff-appellee.

Before HOLLOWAY, McWILLIAMS, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Jimmie Harold Primrose was indicted on thirty-eight counts of mail fraud, 18 U.S.C. Secs. 2, 1341 (1976), and three counts of extortion, 18 U.S.C. Sec. 1951 (1976), in connection with an alleged scheme to defraud the citizens of Murray County, Oklahoma. A jury convicted him of thirteen counts of mail fraud. On appeal, he asserts that: (1) the trial court erred in not dismissing the indictment for unnecessary delay in bringing him to trial; (2) the voir dire of jurors was inadequate; (3) the Government failed to prove a use of the mails for the purpose of executing a scheme to defraud; (4) the trial court abused its discretion by admitting evidence of crimes not charged in the indictment; (5) the prosecutor's references to other county commissioners were improper and prejudicial; (6) the prosecutor improperly cross-examined defense witnesses; and (7) certain remarks the prosecutor made during closing argument constituted improper vouching for witnesses. For the reasons set out below, we affirm.

I. BACKGROUND

In setting forth the circumstances giving rise to this appeal, we view the evidence in the light most favorable to the jury's verdict. United States v. Petersen, 611 F.2d 1313, 1317 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980). Primrose was elected county commissioner for district 3 of Murray County in 1969, and was re-elected for successive terms. In Oklahoma, counties are divided into three districts, and each district is represented by an elected commissioner. One witness described county commissioners as the "managers" and "operators" of the county. Rec., supp. vol. I, at 155. Among other things, they are responsible for maintaining county roads and bridges, a duty that includes authority to make purchases of supplies and equipment.

Primrose was charged with defrauding the citizens of Murray County by purchasing various materials and supplies for the county in exchange for kickbacks from the vendors, and by placing orders for materials and supplies that were not to be delivered and splitting with the vendors the amount paid by the county for the undelivered goods. ¹ The Government's four chief witnesses were vendors who testified about the alleged kickbacks and "split deals" or "50-50 splits."

The first witness, Edward Wilson, had been a salesman for Long Brothers Material Co. from 1973 to 1974, then had his own firm, Wilson Material Co., from 1974 to 1979. ² Wilson testified that he had paid Primrose ten percent cash kickbacks when Primrose placed orders with him. He also testified about several "split deals" he had made with Primrose:

"Well, we would just meet and visit and discuss what we was going to do. And he would say, or I would say let's make a deal for, you know, a couple of hundred, or 150, and then I would just double it. And then I would go to my books and he would say put it on a tin horn or put it on lumber. And I would just figure out the amount it would take to come up to that total."

Rec., supp. vol. I, at 253. Wilson would pay Primrose half the total, bill the county for the goods that he never delivered, and receive his warrant (the county's "check") in the mail.

The three other vendors gave similar testimony. Bill Klutts, a co-owner of Okie Equipment Co., sold supplies and equipment to counties from 1977 to 1979. He testified that "[i]n most all cases there was a ten percent kickback built right into your price of supplies, tin horns, and lumber, grader blades." Id. at 308. He identified purchase orders, invoices, and warrants relating to seven transactions he had had with Primrose. These transactions constituted Counts 1-7 of the indictment. He testified that he had paid Primrose at least a ten percent kickback on each transaction and that the transaction described in Count 2 "was probably a split order." Id. at 318-19. He said that his invoices had been mailed to Murray County and that Murray County had mailed him warrants in payment.

T.L. ("Tommy") Craft, the owner of T.L. Craft Materials, Inc., sold bridge lumber and grader blades to Primrose's district. He testified to seven transactions, corresponding to Counts 28-34, on which he had paid Primrose ten percent kickbacks. ³ He also testified that he had paid Primrose kickbacks on twelve other transactions that were not listed in the indictment ⁴ and "[m]ight have split one or two with him back there." Id. at 378. Craft stated that his company's invoices had been mailed to the county and the county had mailed its warrants to him.

E.L. ("Cotton") Irwin, who represented Independent Industries, Inc., and Machinery Parts & Service Co., also related his dealings with Primrose. He said that he usually had paid Primrose a ten percent kickback, although he had paid a smaller kickback on machinery and also had made a few "splits" with him. ⁵ Irwin stated that his companies had mailed invoices to the county and had received the county's warrants in the mail.

State law requires a notarized statement of noncollusion on every invoice submitted to a county for payment of $1,000 or more. Each supplier must state "that (s)he has made no payment directly or indirectly to any elected official, officer or employee of ... any county ... of money or any other thing of value to obtain payment." Okla.Stat. tit. 74, Sec. 3109 (1981). Each of the four vendors testified that he was required to submit such affidavits with his purchase orders and invoices in order to get paid.

The defense presented nineteen witnesses who all said they never knew Primrose to take kickbacks. Three women who had done office work for the three Murray County commissioners testified that Irwin, Klutts, and Craft periodically had come into the county courthouse, sometimes to deliver invoices, sometimes to pick up warrants, and sometimes to call on the commissioners. The women had never witnessed kickbacks. One man said he had worked for Irwin for several years and had never heard anything about kickbacks. Ten vendors testified that they had done business with Primrose and had never paid kickbacks nor had they been asked to do so. Two mechanics for Primrose's district testified that certain equipment that Irwin testified had not been delivered in fact had been installed on a county bulldozer. Three witnesses said Primrose had a good reputation for honesty. Finally, Primrose himself testified that he had never taken kickbacks and, on the contrary, had stopped doing business with Klutts when offered a kickback.

II. PRE-TRIAL DELAY

Primrose was indicted November 19, 1981, on thirty counts of mail fraud and one count of extortion. On December 31 the Government gave Notice of Dismissal of the indictment. The trial court granted the Government leave to dismiss on January 4, 1982, the date the case was originally scheduled to go to trial. See Fed.R.Crim.P. 48(a). Three days later a second indictment was returned against Primrose, charging him with thirty-eight counts of mail fraud and three counts of extortion. Primrose was arraigned and trial was set for March 1. Primrose moved to dismiss the second indictment under Federal Rule of Criminal Procedure 48(b) on the ground of unnecessary delay. Primrose appeals the district court's denial of this motion. He does not, however, allege any violation of the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1976), of the speedy trial clause of the Sixth Amendment, or of the due process clause of the Fifth Amendment.

Rule 48(b) provides:

"If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint."

The rule is applicable only to post-arrest situations. United States v. Lovasco, 431 U.S. 783, 789 n. 8, 97 S.Ct. 2044, 2048 n. 8, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 462, 30 L.Ed.2d 468 (1971); United States v. McManaman, 606 F.2d 919, 922 n. 5 (10th Cir.1979). Because Primrose was not arrested prior to indictment, Rule 48(b) is inapplicable.

III.

VOIR DIRE OF JURORS

Primrose asserts that voir dire in this case was inadequate because all the jurors had read or heard about the ongoing county commissioner investigation. He contends that the voir dire was not sufficiently broad to permit the trial court to assess the effect of this publicity on the jurors' ability to be impartial. He also argues that each juror should have been questioned individually out of the presence of other jurors.

We have considered virtually identical arguments in United States v. Whitt, 718 F.2d 1494, (10th Cir.1983), filed this date. In Whitt, as in this case, the trial judge asked general questions regarding the potential jurors' exposure to publicity, and then questioned individual jurors about their ability to be fair and impartial despite what they had heard or read. Based on the authorities and the analysis set forth in Whitt, we conclude that the voir dire here was adequate and did not constitute reversible error.

IV.

MAIL FRAUD

The mail fraud statute provides:

"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or...