U.S. v. Sutton

Decision Date29 August 1986
Docket NumberNos. 85-5277,85-5600,s. 85-5277
Citation255 U.S.App.D.C. 307,801 F.2d 1346
Parties, 55 USLW 2157, Energy Mgt. P 26,569, 21 Fed. R. Evid. Serv. 305 UNITED STATES of America v. Robert B. SUTTON, Appellant. UNITED STATES of America v. Mark A. SUCHER, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mitchell B. Lansden, appointed by this Court, for appellant in No. 85-5277.

W. Gary Kohlman for appellant in No. 85-5600.

Michael W. Farrell, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. and E. Lawrence Barcella, Jr., Asst. U.S. Atty., were on brief, for appellee in No. 85-5277 and 85-5600.

Before STARR, Circuit Judge, WRIGHT and MacKINNON, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

MacKINNON, Senior Circuit Judge:

Appellants Robert Sutton, who resold crude oil, and Mark Sucher, an employee of the Department of Energy ("DOE"), were convicted of various criminal offenses 1 for their roles in a complicated conspiracy to bribe federal officials in order to obstruct a DOE investigation of Sutton's companies for noncompliance with price regulations, and to gain confidential information relating to DOE settlement negotiations. On appeal Sutton and Sucher assign several grounds as reversible error. Finding none, we affirm the convictions.

I. BACKGROUND
A. Facts

Robert Sutton was engaged in the business of reselling crude oil through the corporate entity BPM Ltd., operating out of Oklahoma (BPM Oklahoma), California (BPM California), and the Bahamas (BPM International). Sutton and his affiliated companies were allegedly among the largest violators of DOE price regulations pertaining to the certification and resale of crude oil. 2 In response to civil and criminal investigations by the Department of Energy and the Department of Justice, Sutton became involved in a labyrinthian conspiratorial effort to bribe officials of the federal government, hoping to gain confidential information and to improperly influence government settlement negotiations.

The conspiracy included Sutton, at least four intermediaries, and Mark Sucher, a trial attorney in the Office of Special Counsel at the Department of Energy. The four intermediaries in the conspiracy were: Andrew Gazzara, Sutton's employee in charge of the California operation and the conspirator who apparently had Sutton's ear for much of the duration of the conspiracy; Myron Maxwell, a Florida businessman who brought the conspirators together in the first instance and seemed to coordinate matters along the way; Thomas Peacock, a Washington lobbyist, who was a former employee at DOE and an old friend of Maxwell; and Shelley Kolbert, a high-ranking administrative official in the Office of Special Counsel at DOE. Each of these four conspirators testified at trial for the prosecution pursuant to plea negotiations. 3 According to the government, Sucher received bribe money originating with Sutton in exchange for admittedly passing information and confidential DOE documents to Shelley Kolbert intended for Sutton.

Sutton and Gazzara began doing business together in the late 1970's reselling crude oil. In 1978 the DOE began investigating alleged violations of DOE price regulations by Sutton's companies. By late 1979 DOE had prepared criminal referrals--DOE documents that contained evidence of potential criminal liability--on the Sutton operations to be forwarded to the Department of Justice for possible federal criminal prosecution.

Through one of Sutton's business associates, Gordon Margulis, Maxwell learned in late 1979 of Sutton's difficulties with the Department of Energy (Tr. 490). Maxwell claimed to have a contact in the District of Columbia, a lobbyist who had prior experience with the DOE (Tr. 491). After speaking with Margulis, Maxwell called his Washington contact, Tom Peacock, stated the nature of Sutton's troubles with DOE, and asked whether Peacock could help. Peacock replied that he could help Sutton. Maxwell passed the information to Margulis, who set up a meeting for Sutton and several of his associates with Maxwell and Peacock in Washington, D.C. Peacock arranged for Sutton to meet with former Senator Walter Flowers in February 1980, although Sutton ultimately decided against using the services of Flowers' lobbying firm.

After it had become apparent that Sutton was not interested in using Flowers' lobbying firm, Peacock, following several conversations with Maxwell (Tr. 751), contacted Shelley Kolbert sometime in the spring of 1980. Peacock told Kolbert "that these people wanted help and [that] there was money to be made." (Tr. 753). Kolbert's testimony regarding the same conversation was more descriptive:

[Peacock said,] "Hey I've got something that I think we can make a really big score on." ... He said that he had a client that was interested in getting some information out of the Department of Energy. More specifically, a client that was interested in getting information out about an investigation of a firm within the Department of Energy.

... [T]he client's name was Mr. Robert Sutton.

* * *

And [Peacock] said that if there was anything that I [Kolbert] could do to assist him, that it would be worth my while and that any moneys which he received for these services would be split on a 50-50 basis.

(Tr. 1079-80).

Kolbert, who was not a lawyer, was then employed in an administrative capacity in the Office of Special Counsel at DOE, but did not have personal access to information relating to the Sutton investigations (Tr. 1084). Kolbert thus immediately contacted Mark Sucher, who was then employed as a trial attorney in the division of the Office of Special Counsel charged with investigating possible willful or criminal violations by the thirty-five largest oil refiners. 4 Kolbert testified:

I told Mr. Sucher that I had a friend, whom I didn't name, who had a client that was interested in getting some information out of the Department of Energy dealing with certain of the investigations dealing with an oil company.... Well, I told him that this friend was willing to pay for the information.

... I told him that the principal interest that was stressed by Mr. Peacock was a company or companies dealing with a Mr. Robert Sutton.

(Tr. 1084) (emphasis added). Sucher then explained to Kolbert who Sutton was and why the Sutton investigation was regarded as important to DOE (Tr. 1085). Kolbert's understanding of the meeting was clear:

At that first meeting [with Sucher], it was my idea that we would provide Mr. Peacock ... information on a company which wasn't Mr. Sutton's company, but just something to show that, in fact, timely information could be gotten by us and given to him, in other words, on another company, a company which was totally unrelated, basically as a show document to aid Mr. Peacock in his negotiations with his clients.

* * *

... I told Mark [Sucher] that we would be receiving money for this and that was pretty much the sum total of the meeting.

(Tr. 1085-87) (emphasis added). Shortly after this meeting, according to Kolbert, Sucher called to verify his ability to retrieve documents relating to the Sutton companies (Tr. 1088).

Acting on the assumption that money would be forthcoming, Peacock began to receive from Kolbert information pertaining to audit reports, grand jury activities, and the possibility of settlement (Tr. 754-55). Peacock relayed the information to Maxwell and transmitted Maxwell's questions to Kolbert (Tr. 756). Kolbert testified that his source of information was Mark Sucher (Tr. 1090-91).

A short time later Kolbert went to Peacock's office to find out whether Sutton's money would be forthcoming. Kolbert testified that Peacock telephoned Maxwell, while Kolbert was in the room, and said, " 'Concerning the oil deal, I think we can do some good for your people, but it's going to cost you some money.' " (Tr. 1089). Peacock then covered the receiver and asked Kolbert how much it would cost. When Kolbert did not give a figure, Peacock suggested $25,000, saying to Maxwell, " 'It is going to cost $25,000, because people need to be paid for their services.' " (Tr. 1089-90). Peacock's account of his conversation with Maxwell differed somewhat. Peacock testified that Kolbert stated a need for $10,000 "to take care of people in government that were giving him [Kolbert] information" (Tr. 757). While Peacock had Maxwell on the telephone, Kolbert added $5,000 for himself and Peacock did likewise. Peacock thus asked Maxwell for $20,000 (Tr. 757). Maxwell told Peacock that he intended to keep $5,000 for himself, pushing the figure up to $25,000 (Tr. 498-99). Peacock told Maxwell that the money was necessary "if you [Maxwell] want to keep the information going" (Tr. 754). At this meeting Kolbert also provided Peacock with a summary of the type of documents that he could take from the Department of Energy. Kolbert had earlier been briefed on this subject by Mark Sucher (Tr. 1091).

Maxwell thereafter contacted Gordon Margulis, who recommended that Maxwell contact Andrew Gazzara in order to get money from Sutton. Through Gazzara, Maxwell requested $40,000 from Sutton "to start getting the ball rolling in Washington" (Tr. 76). Maxwell testified that, contrary to his conversation with Peacock, he intended to keep $20,000 (Tr. 498-99). Sutton directed Gazzara to wire Maxwell money drawn from Gazzara's account with BPM California, and promised to reimburse Gazzara. Gazzara wired $40,000 to Maxwell in Florida on May 6, 1980; Maxwell caused $20,000 to be wired to Peacock in the District of Columbia on May 7, 1980 (Tr. 760). The latter wire transfer was the basis of Count III of the indictment. Peacock endorsed a check on May 7, 1980 for $20,000 cash, from which he gave Kolbert $15,000. Contrary to Kolbert's understanding with Peacock, however, Kolbert kept $10,000 (Tr. 1109). Kolbert testified that he gave defendant Sucher $5,000...

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