U.S. v. Rabbitt, 77-1677

• Decision Date: 05 September 1978
• Docket Number: No. 77-1677,77-1677
• Citation: 583 F.2d 1014
• Parties: 3 Fed. R. Evid. Serv. 983 UNITED STATES of America, Appellee, v. Richard J. RABBITT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1014

583 F.2d 1014

3 Fed. R. Evid. Serv. 983

UNITED STATES of America, Appellee, v. Richard J. RABBITT, Appellant.

No. 77-1677.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 13, 1978.

Decided Sept. 5, 1978.

Alan G. Kimbrell, of Rosecan, Kimbrell & Witzel, St. Louis, Mo., for appellant; Mortimer A. Rosecan, St. Louis, Mo., on brief.

Terry I. Adelman, Asst. U. S. Atty., St. Louis, Mo., for appellee; Robert D. Kingsland, U. S. Atty., Stephen B. Higgins, Asst. U. S. Atty., on brief.

Before BRIGHT and HENLEY, Circuit Judges, and TALBOT SMITH, Senior District Judge. ^*

BRIGHT, Circuit Judge.

Richard Rabbitt appeals from a jury conviction on eleven counts of mail fraud in violation of 18 U.S.C. § 1341 (1976), and three counts of extortion and one count of attempted extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (1976). The district court sentenced Rabbitt to serve seven years' imprisonment and five years' probation and to pay $18,000 in fines. Rabbitt asserts several claims of reversible error revolving around two themes: (1) that adverse rulings of the trial judge concerning joinder and the admissibility of evidence rendered the trial unfair, and (2) that the prosecution failed to meet its burden of proof on certain essential elements of the case.

This prosecution calls into question Rabbitt's allegedly corrupt conduct as a Missouri state legislator. This appeal compels us to consider again ¹ the extent to which the federal mail fraud statute, 18 U.S.C. § 1341 (1976), and the Hobbs Act, 18 U.S.C. § 1951 (1976), may be employed by federal prosecutors as one means of bringing allegedly corrupt nonfederal officeholders to trial in the federal courts on criminal charges.

In this case we set aside convictions on ten mail fraud counts and one Hobbs Act extortion count and sustain convictions on one mail fraud count and three Hobbs Act counts. ²

I. Background.

Richard Rabbitt was elected to the Missouri House of Representatives in 1960 and remained a member of the House until 1976. He served as majority floor leader from 1967 through 1972, when he became Speaker of the House. He remained Speaker until he resigned in 1976 to campaign as a candidate for Lieutenant Governor of the state.

Rabbitt's responsibilities as majority floor leader included establishing the time of meeting and order of business of the House of Representatives. As leader, Rabbitt selected the calendar each day and generally assisted the Speaker. As Speaker, Rabbitt presided over the house-assembly, appointed all the members of all committees, including the chairmen of the committees, assigned all bills to committees, and performed other miscellaneous duties.

The criminal charges brought against Rabbitt relate to three occurrences during his public life: (1) his acceptance of an indirect payoff to assist Missouri automobile dealers in obtaining relief from an onerous inventory tax through passage of a measure called Senate Bill 110; (2) his unsuccessful demand for a payoff in the form of law business for assisting Missouri truckers to obtain a bill authorizing operation of heavier trucks; and (3) his agreement to assist the firm of Berger-Field-Torno-Hurley, Architects and Planners, Inc., to obtain State of Missouri architectural contracts.

A. Senate Bill 110 Auto Dealers.

Substitute Senate Bill 110 (S.B. 110), introduced in 1973, proposed a change in the Ad valorem method of taxation of car dealers' inventories. According to the Ad valorem system, car dealers were taxed a percentage of the value of the highest inventory during a regular four-month period each year. Legislation to change the tax to a standard amount on each new car sold had been introduced in previous sessions of the legislature but to no avail. Because the automotive industry believed the tax system proposed by S.B. 110 would be more equitable, the Missouri State Automobile Dealers Association decided in 1973 to make a concerted effort to have the bill heard, considered, and passed in that year. The Association assigned Gene Worn, legislative liaison for the Greater St. Louis Automobile Dealers Association, to assist in lobbying to obtain House approval of S.B. 110.

After the Senate passed the bill with no particular difficulty, Rabbitt, in his capacity as Speaker, assigned the bill to the Local Government-Related Matters Committee, a committee generally favorable to the bill and chaired by a personal friend of Rabbitt. Worn spoke with the committee chairman who said the bill would have an early hearing. Worn then asked Rabbitt what, if anything, could be done to expedite the bill's passage. Rabbitt suggested that Worn retain additional legal counsel, recommending his close friend, John Connaghan, an attorney and lobbyist.

Worn conferred with leaders in the Missouri State Automobile Dealers Association, and the group decided to follow Speaker Rabbitt's advice. As the legislative session was nearing its close, the automobile dealers were concerned that their efforts to obtain this industry bill might not bring success in the House without full legislative cooperation. Worn contacted Connaghan, who agreed to speak with Rabbitt about the bill for a nonnegotiable fee of $20,000. Worn hired Connaghan. Based on his experience in the legislature, Worn believed it was wise to follow a House Speaker's recommendation on legislation.

As a down payment, Ben Lindenbusch, a St. Louis automobile dealer, advanced $5,000 in the form of a personal check toward Connaghan's fee. Later the Motor Car Dealers Association of Greater Kansas City mailed a $5,000 contribution in the form of a check for Connaghan to Lindenbusch. Two other $5,000 checks were obtained. Worn delivered the additional $15,000 to Connaghan.

Connaghan performed no lobbying work. He gave this fee to Rabbitt, some directly and the remainder indirectly by check to Rabbitt's law partner-brother, Peter Rabbitt. These funds were deposited in a special account available for withdrawal by Richard Rabbitt. The Rabbitts admitted receiving funds from Connaghan but claimed the money represented referral fees for law business previously assigned to Connaghan.

The record discloses that following the $5,000 down payment, S.B. 110 survived a committee hearing and passed the House. The Governor subsequently voided the legislation as unconstitutional.

As we have previously noted, ³ the incidents relating to S.B. 110 resulted in one count of mail fraud under the mail fraud statute, count XIV, and two counts of extortion under the Hobbs Act, counts XII and XIII.

B. House Bill 1336 Overweight Trucks.

On December 7, 1973, prior to the 1974 Missouri legislative session, George Burruss, a lobbyist for the Missouri Bus and Truck Association, visited defendant Rabbitt at the latter's law office. They discussed House Bill 1336 (H.B. 1336), a bill increasing the permissible weight of trucks on Missouri highways. Rabbitt was noncommittal about whether he would support H.B. 1336. Describing the meeting, Burruss testified:

(W)e visited awhile, and at some point Mr. Rabbitt indicated that he had added some persons to the law firm and needed some more law business from maybe the truckers or trucking industry, words to that effect.

At the time Burruss did not accord any particular significance to the conversation.

In mid-January 1974, during the legislative session, Burruss approached Rabbitt outside his office in the Capitol Building and asked why H.B. 1336 had not been assigned to a committee. Burruss testified that Rabbitt responded: "Because I haven't gotten any law business yet." Rabbitt ultimately assigned this bill to an unfriendly committee in which the proposed legislation was buried.

Based on this series of events, Rabbitt was charged with attempted extortion under the Hobbs Act, count XV.

C. Berger-Field Architects.

In 1965, Paul Hurley, a partner in the St. Louis-based architectural firm of Berger-Field-Torno-Hurley, Architects and Planners, Inc. (Berger-Field), and a long-standing personal friend of Rabbitt, approached Rabbitt on behalf of the firm and sought his help in securing architectural contracts for state construction work. Rabbitt offered, for a fee of ten percent from any resulting work, to introduce the firm to people who might be able to secure architectural contracts for it. ⁴

The evidence indicates that Rabbitt recommended the Berger-Field firm as competent architects to persons ⁵ authorized to employ architects for state projects. ⁶

During the course of the agreement, the firm credited Rabbitt for some state work it secured. Berger-Field specifically attributed two state projects and one large project from the University of Missouri it received to Rabbitt's influence. Rabbitt also instructed the firm on the procedure to obtain an additional appropriation needed to cover one of its state projects. ⁷ The firm paid Rabbitt's ten percent fee in cash ⁸ and later in the form of a $500 monthly retainer to Rabbitt's law partner, Joseph Dickerson, who would mail a monthly statement to the architects on either personal or firm stationery. When payment arrived, Dickerson would deposit the retainer in his personal account and write a check for a like amount to the law firm of Rabbitt, Rabbitt, and Dickerson. Dickerson did little work for the retainer. The evidence revealed that the architects paid Rabbitt ten percent ($22,538) of the gross fees from both city and state contracts attributable to his influence. This money was paid either directly to Rabbitt or to Dickerson for the benefit of Rabbitt's law firm. In his defense, Rabbitt denied any payoff agreement and attempted to account for payments to the law firm as legitimate collections for law work done without formal billing in earlier years and as proper retainer fees.

The mailings of law firm retainer bills and checks in payment generated the ten mail fraud charges contained in counts I to X. The demand for the ten percent kickback...