U.S. v. Rogers, No. 95-5351

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMOORE
Citation118 F.3d 466
Parties47 Fed. R. Evid. Serv. 509 UNITED STATES of America, Plaintiff-Appellee, v. John D. ROGERS, Defendant-Appellant.
Docket NumberNo. 95-5351
Decision Date02 July 1997

Page 466

118 F.3d 466
47 Fed. R. Evid. Serv. 509
UNITED STATES of America, Plaintiff-Appellee,
John D. ROGERS, Defendant-Appellant.
No. 95-5351.
United States Court of Appeals,
Sixth Circuit.
Argued March 26, 1996.
Decided July 2, 1997.

Page 469

Stephen G. Frye (argued), Terry M. Cushing (briefed), Stephen B. Pence, Asst. U.S. Attys., Louisville, KY, Edwin J. Walbourn, III, Office of the U.S. Attorney, Covington, KY, for Plaintiff-Appellee.

John H. Harralson, III (argued), John L. Smith (briefed), Smith & Helman, Louisville, KY, for Defendant-Appellant.

Before: KENNEDY and MOORE, Circuit Judges; WELLS, District Judge. *


MOORE, Circuit Judge.

John Rogers, a former Kentucky State Senator, appeals his convictions for conspiracy to commit extortion and attempted extortion under color of official right in violation of 18 U.S.C. § 1951 (Counts One and Two), mail fraud in violation of 18 U.S.C. §§ 1341 and 1346 (Count Three), and making a materially false statement to a federal agent in violation of 18 U.S.C. § 1001 (Count Four). For the reasons that follow, we affirm Rogers's convictions.


In 1983, Rogers, State Senator Frank Miller, and lobbyists Jay Spurrier and William Wester agreed to accept compensation from businessman/banker Wallace Wilkinson in exchange for their efforts to secure the passage of the Multi-Bank Holding Company Bill ("the Banking Bill"). The Banking Bill, which had been defeated by a narrow margin in 1982, would permit Kentucky banks to expand across county lines. The conspirators planned for Wilkinson to purchase a bank in Bowling Green, Kentucky after the Banking Bill passed. After a while, Wilkinson would sell the bank and share half of the profits with Rogers, Miller, Wester, and Spurrier. The Banking Bill passed in April 1984, and Wilkinson purchased a bank in Bowling Green a little over a year later in June 1985. Wilkinson was elected Governor of Kentucky in November, 1987, and while he held that office, the conspirators did not attempt to collect any money from him.

In January of 1992, when Spurrier was arrested for his participation in an unrelated criminal scheme, he told the FBI about the Banking Bill conspiracy. Spurrier agreed to cooperate with the FBI by recording conversations with the other conspirators in which they discussed their deal and their plan for obtaining their share of the bank profits from Wilkinson. During one meeting that Spurrier recorded, Rogers, Miller, Wester, and Spurrier decided to take several photos of

Page 470

themselves next to a life-sized cardboard photo of Wilkinson. See J.A. at 122. Rogers mailed the pictures to Wilkinson with a note to remind him of their deal, stating that the group "had a meeting and it was good [and] this picture just reminded me that we need to have a board of directors meeting some time soon [and that Rogers would] be in touch." J.A. at 130. 1

Thereafter, Rogers, Miller, Wester, and Spurrier repeatedly attempted to contact Wilkinson. On March 3, 1992, Rogers, Wester, and Spurrier met to discuss their progress in contacting Wilkinson and to estimate the amount they would receive from the sale of the bank. On March 5, Wester, Spurrier, and Miller called Wilkinson to determine whether the photograph Rogers sent to Wilkinson had the desired effect. On March 10, Wester, Spurrier, Miller, and Rogers met again to discuss the passage of the Banking Bill and their anticipated monetary gain. The group attempted to contact Wilkinson in the days that followed.

After several unsuccessful attempts to contact him, Spurrier enlisted the aid of Wallace Wilkinson's nephew and former employee, Bruce Wilkinson. Spurrier recorded three conversations he had with Bruce Wilkinson during which Bruce promised to talk to his uncle about meeting with the conspirators. On March 25, Bruce told Spurrier that his uncle refused to meet with Spurrier and the others. J.A. at 192.

Rogers admitted, on cross examination, that he attempted to arrange a meeting with Wallace Wilkinson to solicit a campaign contribution and to determine whether Wilkinson would follow through on his offer to give Rogers some profits from the bank. J.A. at 344, 348-49. However, Rogers denied that the offer was in any way connected to his support of the Banking Bill. J.A. at 349.

On March 31 and April 1, 1992, two FBI Special Agents interviewed Rogers. During these interviews, Rogers denied his participation in any aspect of the conspiracy or any attempt to extort money from Wilkinson. Rogers denied that Wilkinson owed him anything, that he had any agreement with Wilkinson for his support of the Banking Bill, or that he had discussed with others the amount of money owed to him by Wilkinson.



Rogers was convicted on Count Four for violating 18 U.S.C. § 1001, which provides that "[w]hoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully ... makes any false, fictitious or fraudulent statements or representations [shall be guilty of an offense against the United States]." To establish a violation of § 1001, the government must prove that: "(1) the defendant made a statement; (2) the statement is false or fraudulent; (3) the statement is material; (4) the defendant made the statement knowingly and willfully; and (5) the statement pertained to an activity within the jurisdiction of a federal agency." United States v. Steele, 933 F.2d 1313, 1318-19 (6th Cir.) (en banc) (citing United States v. Chandler, 752 F.2d 1148, 1150 (6th Cir.1985)), cert. denied, 502 U.S. 909, 112 S.Ct. 303, 116 L.Ed.2d 246 (1991). The district court, following existing Sixth Circuit precedent, determined that Rogers's statements to the FBI were material as a matter of law.

In United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), the Supreme Court held that the district court's refusal to allow the jury to pass on the "materiality" of the defendant's false statements under 18 U.S.C. § 1001 infringed on the defendant's constitutional right "to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." Id. at 522-23, 115 S.Ct. at 2320. This right is based on the Fifth Amendment guarantee that no one will be deprived of liberty without due process of law and the Sixth Amendment right to a speedy trial by an impartial jury in a criminal case. Id. at 508-10, 115 S.Ct. at 2313. Gaudin was decided three weeks after Rogers filed his appellate brief. It overruled

Page 471

Sixth Circuit precedent regarding who decides the question of "materiality" in a prosecution under 18 U.S.C. § 1001. See, e.g., United States v. Abadi, 706 F.2d 178, 180 (6th Cir.), cert. denied, 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983). 2 Gaudin applies retroactively in the instant case because "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (addressing the retroactivity of the Batson rule). Accord Johnson v. United States, 520 U.S. 461, ----, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997).

The government points out that Rogers failed to request at trial that the jury determine the materiality element under § 1001, and did not raise it in his appellate brief. A defendant's failure to raise an issue in the district court normally constitutes either forfeiture or waiver. "[F]orfeiture is the failure to make the timely assertion of a right, [and] waiver is the 'intentional relinquishment or abandonment of a known right.' " United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (citations omitted). Of course, Rogers could not have knowingly waived a constitutional right that evolved after he filed his appellate brief because raising the issue would have been futile in light of then-applicable precedent. Several circuit courts have so held in other contexts. See United States v. Chesney, 86 F.3d 564, 568 (6th Cir.1996) (holding that defendant did not waive challenge to 18 U.S.C. § 922(g) because the Supreme Court decided United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), after the district court entered judgment); United States v. Miller, 406 F.2d 1100, 1105 (4th Cir.1969) (finding that failure to raise issue could not constitute a knowing waiver of constitutional rights where Supreme Court decided a case that affected rights at issue after defendants pleaded guilty); Lauchli v. United States, 402 F.2d 455, 456 (8th Cir.1968) (failure to raise issue below does not amount to waiver where subsequent Supreme Court decisions changed the law).

With respect to forfeiture, the Supreme Court recently held that where a defendant failed to object, before Gaudin, to the district court's refusal to submit the issue of materiality to the jury under 18 U.S.C. § 1623 (prohibiting perjury before a grand jury), plain error review under Federal Rule of Criminal Procedure 52(b) applies. Johnson, at ----, 117 S.Ct. at 1548. See also United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir.) (holding that the court was only authorized to undertake plain error review even though the Supreme Court decided Gaudin after defendant was convicted), cert. denied, --- U.S. ----, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996); United States v. Ross, 77 F.3d 1525, 1539 (7th Cir.1996) (applying plain error analysis even though Gaudin overturned settled precedent after trial); United States v. David, 83 F.3d 638, 645 (4th Cir.1996) (holding, in a case retroactively applying Gaudin, that "both the purposes of the contemporaneous objection rule and considerations of sound judicial administration...

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