U.S. v. Simmons

• Decision Date: 08 September 1998
• Docket Number: 98-1070 and 97-4027,Nos. 97-4025,s. 97-4025
• Citation: 154 F.3d 765
• Parties: UNITED STATES of America, Appellee, v. Cathryn M. SIMMONS, Appellant. UNITED STATES of America, Appellee, v. Michael L. FISHER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 765

154 F.3d 765

UNITED STATES of America, Appellee, v. Cathryn M. SIMMONS, Appellant.

UNITED STATES of America, Appellee, v. Michael L. FISHER, Appellant.

Nos. 97-4025, 98-1070 and 97-4027.

United States Court of Appeals,

Eighth Circuit.

Submitted June 9, 1998.

Decided Aug. 17, 1998.

Amended Sept. 8, 1998.

Alfredo Parrish, Des Moines, Iowa, argued (Michael L. Fisher and Michael P. Joyce, on the brief), for Appellants.

Bruce E. Clark, Assistant U.S. Attorney, Kansas City, Missouri, argued, for Appellee.

Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER, ¹ District Judge.

RICHARD S. ARNOLD, Circuit Judge.

A jury convicted Cathryn M. Simmons of twelve bribery violations under 18 U.S.C. § 666(a)(2) (1994), five mail-fraud violations under 18 U.S.C. § 1341 (1994), and one violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962 (1994). The same jury convicted Michael L. Fisher of two bribery violations, one mail-fraud violation, and one RICO violation. Simmons and Fisher now appeal the District Court's ² resolution of forfeiture issues, and Simmons also appeals sentencing issues.

I.

On October 31, 1996, a grand jury returned a twenty-six-count indictment against Bob F. Griffin, Cathryn M. Simmons, Michael L. Fisher, and Steven R. Hurst. At the time, Griffin served as Speaker of the Missouri House of Representatives; Simmons owned and operated several political consulting firms; Fisher was the President of the Greater Kansas City AFL-CIO; and Hurst was a registered lobbyist. App. at 10-11. Count One of the indictment charged that the four defendants and Richard E. Moore, who was a member of the Clay County Commission in Clay County, Missouri, and was not a defendant in this case, were associated with a RICO enterprise, through which Griffin and Moore, in return for bribe payments, obtained consulting contracts for Simmons. App. 11-12. In addition to the RICO violation, the indictment alleged 25 violations of federal bribery and mail-fraud statutes. App. 39-52. The indictment also sought forfeiture of assets from the defendants pursuant to the RICO Act. App. 36-38.

The indictment set forth the racketeering and other charges in the context of five different "schemes." The first scheme involved the Motor Fuel Tax Bill, which was introduced in the Missouri House of Representatives on January 9, 1992, and which was proposed to increase the state motor fuel tax by six cents a gallon over five years to pay for construction of highways, roads, and bridges in Missouri. Proponents of this legislation included the Heavy Constructors Association of Kansas City and the Associated General Contractors of Missouri, two organizations representing construction companies in Missouri. The indictment alleged that shortly after the introduction of the Motor Fuel Tax Bill, Griffin met with members of the Heavy Constructors Association, the Associated General Contractors, and other construction groups in a hotel in Jefferson City, and recommended that members of the construction industry hire Simmons to assist them in lobbying for the new motor fuel tax. The Heavy Constructors Association and the Associated General Contractors hired Simmons to lobby for the Motor Fuel Tax Bill--which eventually passed the Missouri House of Representatives--and paid her a total of $264,000 for her efforts. According to the indictment, in February 1994, after the passage of the fuel tax, Simmons gave Griffin two checks for $5,000 each. App. 13-15.

The second scheme alleged in the indictment involved Health Midwest, Inc., a Kansas City corporation which owned and operated hospitals in Missouri and Kansas, and which sought to purchase North Kansas City Hospital, which was owned by the City of North Kansas City, Missouri. To facilitate this sale, Health Midwest hired Richard E. Moore and his public-relations firm, Moore, Sturges and Associates. Moore in turn hired Simmons to aid in the purchase of the hospital, and agreed to pay Simmons $9,200 per month for her services. Around this time, Simmons also entered into a contract with City Management Corporation, a corporation that operated landfills in Missouri, under which Simmons would assist City Management Corporation in establishing a landfill in Clay County, Missouri. According to the indictment, Simmons agreed to forego the $9,200 monthly payment for her work on the hospital purchase in exchange for Moore's using his position as a Clay County Commissioner to influence the Clay County Commission to approve the establishment of the new landfill. App. 21-23.

The third scheme alleged in the indictment involved the Certificate of Need (CON) Committee, a committee established by Missouri statute to determine the need for health care facilities at different locations in the state. The members of the CON Committee are appointed by the Governor of Missouri, the President Pro Tem. of the Missouri Senate, and the Speaker of Missouri's House of Representatives. According to the indictment, officials with Health Midwest, Inc., believed that Missouri State Representative Bill Skaggs, a member of the CON Committee appointed by Griffin, was hostile to some of their activities. In August 1992, Griffin, Simmons, Fisher, Hurst, and Moore met and discussed the possibility of Griffin's removing Rep. Skaggs from the committee. In January 1993, Griffin removed Rep. Skaggs from the CON Committee, allegedly in exchange for a $10,000 check paid to him by Simmons. App. 25-26.

The fourth scheme alleged in the indictment involved a special session of the Missouri legislature called in September 1993, in the wake of heavy flooding that summer, to consider legislation authorizing the Missouri State Highway and Transportation Commission to issue revenue bonds for the construction and repair of highways, roads, and bridges. Griffin suggested to representatives of the Heavy Constructors Association and other members of the construction industry that they hire Simmons as a consultant to work on the proposed revenue bond legislation, and the construction industry representatives followed Griffin's suggestion. The indictment alleged that in exchange for Griffin's recommendation, Simmons, through Hurst, paid Griffin's son, Jeff Griffin, $5,000 to lobby on behalf of the revenue bond bill. App. 28-30.

The final scheme alleged in the indictment involved a Health Care Reform Bill considered by the Missouri legislature in late 1993 and early 1994. The indictment alleged that in January 1994, executives at Blue Cross Blue Shield of Kansas City, a health insurance company, met with Simmons and Fisher and entered into an agreement under which Simmons and Fisher, through Simmons's public relations firms, would assist them in defeating or substantially amending any health care reform legislation being considered by the legislature. In February 1994, Griffin met with Blue Cross Blue Shield officials at Simmons's home in Jefferson City to discuss the health care legislation. And in late January and early March, Simmons and Fisher allegedly paid Griffin a total of $41,000 for his help in advising Blue Cross Blue Shield executives about the pending Health Care Reform Bill.App. 31-33.

After several weeks of trial in May and June 1997, a jury convicted Cathryn Simmons of 18 of the 20 counts against her, including the RICO count. Simmons was acquitted of the bribery count involving the removal of Rep. Bill Skaggs from the CON Committee and the bribery count involving the payment of money to Jeff Griffin for his work on the highway bond bill. Michael Fisher was convicted of four of the five counts against him, including the RICO count, and was acquitted of the bribery count involving the removal of Rep. Skaggs from the CON Committee. Bob Griffin was acquitted of three of the counts against him, and the jury was unable to reach a decision on the other six counts, including the RICO count. Steven Hurst was acquitted of all three counts brought against him.

For purposes of the federal Sentencing Guidelines, Simmons's offense level was determined to be 29, Criminal History Category I, which has a range of 87 to 108 months' imprisonment. Fisher's offense level was 26, Criminal History Category I, which has a range of 63 to 78 months' imprisonment. However, because Simmons and Fisher both agreed to testify against Griffin at Griffin's retrial, they each received downward departures below the applicable Sentencing Guidelines pursuant to U.S.S.G. § 5K1.1 (1997). Simmons's sentence was reduced to 50 months' imprisonment, with three years of supervised release and a $900 special assessment. Fisher's sentence was reduced to 39 months' imprisonment, with three years of supervised release, a $5,000 fine, and a $200 special assessment. The government also sought forfeiture of $366,000 obtained by Simmons and Fisher in violation of RICO, including $264,000 paid to one of Simmons's consulting firms for a consulting contract related to the 1992 Motor Fuel Tax Bill, and $102,000 paid to two of Simmons's other firms for consulting contracts related to the 1994 Health Care Reform Bill. Simmons and Fisher agreed to waive their right to submit any forfeiture issues to the jury and to allow the District Court to decide these issues. In an order filed October 23, 1997, the District Court granted the government's motion and ordered forfeiture of $366,000 jointly and severally by Simmons and Fisher.

On appeal, Simmons argues the District Court erred when, for purposes of the Sentencing Guidelines, it found that she was a leader or organizer of a criminal enterprise. Fisher and Simmons also challenge the District Court's rulings with respect to the forfeiture issues in this case.

II.

When the District Court calculated Cathryn Simmons's offense level, she received a four-level increase to her sentence for being "an organizer or leader of a criminal activity" involving five or more participants...