U.S. v. Robinson

• Decision Date: 28 February 1983
• Docket Number: No. 82-4087,82-4087
• Citation: 700 F.2d 205
• Parties: 12 Fed. R. Evid. Serv. 1295 UNITED STATES of America, Plaintiff-Appellee, v. Arlan Lamar ROBINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 205

700 F.2d 205

12 Fed. R. Evid. Serv. 1295

UNITED STATES of America, Plaintiff-Appellee, v. Arlan Lamar ROBINSON, Defendant-Appellant.

No. 82-4087.

United States Court of Appeals, Fifth Circuit.

Feb. 28, 1983.

Michael S. Fawer and Ronda Claire Lustman, New Orleans, La., for defendant-appellant.

James B. Tucker, Asst. U.S. Atty., Jackson, Miss., H. Marshall Jarrett, Atty., Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, THORNBERRY and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

Arlan Lamar Robinson, convicted by a jury of one count of extortion under the Hobbs Act, 18 U.S.C. Sec. 1951 ¹ (Count I), and two counts of misrepresentation under 18 U.S.C. Secs. 1001, 2 ² (Counts IV and V) appeals, challenging the sufficiency of the evidence, various evidentiary rulings and the court's instruction on immunity. Finding no reversible error on Counts IV and V, we affirm. Finding the record incomplete as to Count I, we remand with instructions.

Background Facts

Robinson, Supervisor for District Five, Harrison County, Mississippi, was indicted on five counts charging that he had abused his office for personal gain. ³ The Hobbs Act conviction involved water wells. John Braden, owner of Braden Pump and Well Service, was called in November 1978 to repair a well located in a county barn. When his efforts failed, Braden advised the Board of Supervisors that the county needed a new well.

Braden testified that Robinson contacted him and urged a private meeting at which Robinson insisted, as a condition for Braden's getting the county contract on the new well, that Braden also drill a well on Robinson's farm. According to Braden, Robinson stated: "Now, John, you can do this well if you'll figure it for enough to include your drilling a well up at my farm in Stone County for me." The old county well was only 400 feet deep, but Robinson reportedly told Braden to submit specifications for twice that depth in order to cover Robinson's new well, and to explain the greater depth by reference to other wells near the county barn which were 800-900 feet deep. The Board of Supervisors sought emergency bids and eventually awarded the contract to Braden.

Braden testified that he planned to avoid Robinson's scheme by drilling the county well to 800 or 900 feet, thereby using all of the county pipe and funding, leaving none for Robinson's well. But the drilling subcontractor ignored such instructions and stopped drilling the county well at 360 feet when water was reached. Braden testified that this turn of events left him no choice but to yield to Robinson's persistent urging and drill his well. Braden completed the Robinson well in January 1979, billing Robinson only $837.15, representing the excess cost over the county bid. Robinson thus saved several thousand dollars. Braden also repaired another well owned by Robinson, using a rebuilt pump from the original county well.

Counts IV and V charged that two Harrison County employees, Robert Daniels and Lennis Hudson, performed private farming and construction work on Robinson's farm while drawing a salary from the county made up in part from federal antirecession funds. The funds, authorized under the Intergovernmental Antirecession Assistance Act of 1977, 42 U.S.C. Sec. 6721 et seq., were provided to avoid layoffs of county employees and were not intended for private use.

Daniels was hired as a heavy equipment operator for the county. He testified Robinson told him to say that he was a night watchman at a gravel pit near the Robinson farm. Daniels performed private farm work, including roadbuilding with county equipment, for three years after becoming employed by the county. Daniels estimated that during that period he worked only three months doing county work; the remainder of the time was spent working on Robinson's farm. Robinson personally delivered the county paychecks to Daniels at the farm.

Hudson was ostensibly employed as a grader operator for Harrison County. During one two-year span, 1977-79, he labored fulltime doing farm and construction work for Robinson under the latter's personal direction. In doing this work he used county equipment. Hudson testified that he did not work in the gravel pit during this time, except on occasional trips to get gravel for the foundation of Robinson's barn. Other witnesses confirmed that both Hudson and Daniels were working for Robinson during this period.

Sufficiency of the Evidence

Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and accepting all credibility choices and reasonable inferences the jury could have made to support its verdict, an appellate court may reverse only upon concluding that a reasonable jury would have been compelled to find that guilt was not proven beyond a reasonable doubt. E.g., United States v. Saxton, 691 F.2d 712 (5th Cir.1982).

Robinson argues initially that the evidence falls short of factual sufficiency since Braden's testimony conflicted with the testimony of others and, at times, his own recollections. The jury was entitled to credit Braden's testimony over that of other witnesses. And since we must resolve credibility choices and inferences in favor of the jury's finding, we conclude that the jury was entitled to credit Braden's general credibility over his precise recollection of specific facts. Moreover, objective evidence, including a telephone log notation and the bill for Robinson's redrilled and replaced well charging only $837.15 and marked "for well repair," is consistent with Braden's testimony.

Robinson's challenge appears to ascribe the fraudulent conduct to Braden. This thesis was urged during cross-examination of witnesses and during argument to the jury. Implicit in the conviction is the jury's rejection of this defense--a choice we are not persuaded to overturn. The evidence need not exclude every reasonable hypothesis of innocence or be consistent only with a finding of guilt, since a jury is free to choose among reasonable constructions of the evidence. United States v. Saxton, 691 F.2d at 714.

Robinson also argues that the evidence is legally insufficient, urging that he had no actual power to control the bidding or award the contract. But more critical to an extortion attempt under the Hobbs Act is the reasonable belief of Braden that he would suffer economic harm if he failed to cooperate with Robinson. United States v. Quinn, 514 F.2d 1250 (5th Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1430, 47 L.Ed.2d 361 (1976). Braden testified that he felt he had to participate in Robinson's scheme when it was proposed and that his subsequent efforts to avoid the scheme backfired. As with the factual sufficiency claim raised above, the jurors were informed of the relevant standards and their duty in this regard. The jury's serious performance of that duty is underscored by the acquittals on two counts. We conclude that the government produced evidence sufficient to support Robinson's conviction under the Hobbs Act.

The evidence is also sufficient to support the two convictions under 18 U.S.C. Secs. 1001 and 2. Robinson concedes for the purposes of this appeal that Daniels and Hudson performed personal work on county time but argues that the government did not show the specific weeks in which federal funds were used nor prove actual concealment. The record establishes, however, that both men were paid by the county using federal funds during the general periods charged. Further, it cannot be gainsaid that Robinson's conduct, including his directions to the two workers that they lie about their assignments, gave rise to a reasonable inference of attempted active concealment, despite the number of people in the county who, according to Robinson, knew about the scheme.

Admissibility of Notes

On appeal Robinson objects to the admission and use of a page of handwritten notes, called the "Emerson notes" after their author, William Emerson, who regularly made such notes at meetings of the Board of Supervisors for his own use in his role as county purchasing clerk. The specific notes in question contained information concerning the new county well. ⁴

The notes were introduced through T.J. Eure, the county's comptroller. The notes were attached to a packet of county documents introduced through Eure, who was qualified as county records custodian. ⁵

We conclude that these notes may not be considered "records of regularly conducted activity," admissible under Rule 803(6), Federal Rules of Evidence, ⁶ absent a showing that Emerson regularly compiled them as part of his official duties. Eure's testimony verifying Emerson's note-taking habit may suffice to bring the notes under Rule 803(6), see United States v. Colyer, 571 F.2d 941 (5th Cir.1978); Coughlin v. Capitol Cement Co., 571 F.2d 290 (5th Cir.1978), but authentication alone is not enough. For the notes to be admissible under Rule 803(6), the government also had to establish that "it was the regular practice of that business activity" to have the notes made. This was not done.

Our conclusion that the Emerson notes should not have been admitted does not terminate the inquiry and mandate reversal. We must consider the impact of this evidence on the essential fairness of the trial. "[I]t is necessary to review the facts of the case and the evidence adduced at trial" to determine the effect of the erroneous admission "upon the conduct of the defense." Fahy v. Connecticut, 375 U.S. 85, 87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963), quoted in Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir.) (en banc), cert. denied, 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76 (1980).

The information contained in the notes came before the jury in properly-admitted documentary evidence and through the testimony of...