U.S. v. Sutton

• Decision Date: 23 April 1984
• Docket Number: No. 82-1841,82-1841
• Citation: 732 F.2d 1483
• Parties: Energy Mgt. P 26,487, 15 Fed. R. Evid. Serv. 1639 UNITED STATES of America, Plaintiff-Appellee, v. Robert B. SUTTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1483

732 F.2d 1483

Energy Mgt. P 26,487, 15 Fed. R. Evid. Serv. 1639

UNITED STATES of America, Plaintiff-Appellee, v. Robert B. SUTTON, Defendant-Appellant.

No. 82-1841.

United States Court of Appeals, Tenth Circuit.

April 23, 1984.

Mitchell B. Lansden, Baton Rouge, La. (W. Rodney DeVilliers, Sr. of DeVilliers & DeVilliers, Oklahoma City, Okl., with him on the brief), for defendant-appellant.

William J. Hardy, Washington, D.C. (Frank Keating, U.S. Atty., Tulsa, Okl., and Richard A. Sauber, Atty., Dept. of Justice Criminal Division, Washington, D.C., with him on the brief), for plaintiff-appellee.

Before BARRETT and LOGAN, Circuit Judges, and CHILSON, District Judge ^*.

LOGAN, Circuit Judge.

Defendant Robert B. Sutton appeals his conviction on one count of obstruction of justice, a violation of 18 U.S.C. Sec. 1505, and one count of conspiracy to obstruct justice, a violation of 18 U.S.C. Sec. 371. Those were the last two counts of a seventeen-count indictment. The first fifteen counts alleged racketeering, mail fraud, and wire fraud and were based on allegations that defendant falsely certified and sold crude oil in violation of federal regulations setting ceiling prices for various categories of crude oil. Two corporations wholly-owned by defendant, BPM, Ltd., and Scurry Oil Company, were also named in the first fifteen counts.

After the government rested its case against the defendants, the trial court found that the government had not met its burden of proof on counts one through fifteen and accordingly entered judgments of acquittal on those counts. The government sought immediate review of the trial court's order in this Court. A panel of this Court reversed that order and directed the trial court to submit all seventeen counts to the jury. United States v. Ellison, 684 F.2d 664 (10th Cir.1982). This Court then heard argument en banc and reversed the panel decision. United States v. Ellison, 722 F.2d 595 (10th Cir.1982). After the Supreme Court denied a stay pending resolution of the government's petitions for mandamus and certiorari, the trial resumed. The jury then found defendant guilty on count seventeen, conspiracy to obstruct justice, but could not reach a verdict on count sixteen, obstruction of justice. The trial court declared a mistrial on the obstruction of justice count, and a few weeks later defendant was retried and convicted. The trial court then sentenced defendant to five years in prison on each count, with the sentences to run concurrently, and assessed fines on each count.

The government contended that defendant obstructed justice by advising Gaylord Simon, a BPM employee, to destroy certain records that the Department of Energy (DOE) had directed defendant, as president of BPM, to produce. Michael Bloese, formerly an auditor for the DOE, testified that he served an administrative subpoena at the office of BPM on June 30, 1978, directing defendant to produce certain records, including purchase and sales invoices, so that the DOE could conduct an audit of BPM. The subpoena was introduced into evidence. Charles Wooten, an attorney for defendant, testified that he hired an accountant, William Johnson, in July 1978 to analyze certain BPM purchase and sales invoices and that Johnson took several boxes of BPM records to his office in LaFayette, Louisiana. Dennis Briggs, an employee of one of defendant's companies and defendant's brother-in-law, testified that Simon sent him to pick up the records from Johnson and that he picked up all but one of the boxes and moved them to an ice house in Crowley, Louisiana. Briggs testified that when he told defendant that Johnson still had one box, defendant became upset. Soon after Briggs moved the boxes, vandals destroyed all the records in the ice house.

Gaylord Simon testified that another BPM employee instructed him to pick up the box of records at Johnson's house. Simon did so and then went to LaFonda's Restaurant and called defendant. Simon testified that defendant told him to destroy the records, and that defendant said he would never mention the box again. The government introduced telephone company records to corroborate Simon's testimony, showing that a call was made to the office of Paul McBride, another of defendant's attorneys, from LaFonda's. Simon testified that he disobeyed defendant's instructions and kept the box. Later he gave the box to Jack Clothier, a former business associate of defendant.

Richard Fishkin, a Justice Department lawyer, testified that Paul Wolff, another of defendant's attorneys, wrote him in January 1980 that Jack Clothier and his attorney, William Lambert, might have documents that were the subject of the subpoena served on BPM. Ellis Blount, an FBI agent, testified that William Lambert surrendered a box of records in response to a subpoena ordering Lambert to turn over any BPM records in his possession. Blount identified a box as the one Lambert had given him. That box was admitted into evidence. Another FBI agent, David Brechwald, testified that he examined the contents of the box and found that it contained BPM invoices from late 1976 to early 1978.

To prove count seventeen, the conspiracy count, the government introduced tapes of conversations between defendant and Carlos Marcello. In addition, the government introduced evidence of unrecorded meetings between defendant and Marcello. The tapes reveal that defendant told Marcello he wanted Marcello to prevent Lambert and Clothier from talking to the FBI. The jury's guilty verdict necessarily represented a finding that Marcello agreed to defendant's request.

At the second trial the government introduced substantially the same evidence to prove obstruction of justice as at the first trial. To prove motive, the government offered testimony that defendant had bought oil for which there was a ceiling price and sold it as oil for which there was no ceiling price. The jury convicted defendant on this count at the second trial.

On appeal defendant challenges the validity of the indictment against him, argues that the trial court should have granted his motion to sever, and contends that after the trial court entered judgment on the first fifteen counts of the indictment, the government was collaterally estopped from proceeding against him on the remaining counts. Defendant also contends in regard to the first trial: (1) that the court erroneously admitted statements of Carlos Marcello; (2) that parts of tape-recorded conversations played at trial were prejudicial; (3) that the court erred in not allowing defendant to question a witness about charges pending against her; (4) that the court should not have admitted the box of records; (5) that the evidence was insufficient to support a conviction on the obstruction of justice count; (6) that the evidence was insufficient to support the conviction for conspiracy; (7) that the court should have granted a mistrial after it entered judgments of acquittal on the first fifteen counts; and (8) that the court erred in instructing the jury that there were no missing witnesses in the case.

In regard to the second trial defendant contends: (1) that the court abused its discretion in its conduct of voir dire; (2) that the court erred in not allowing defendant to inform the jury of his acquittal on the first fifteen counts of the original indictment; (3) that the court erroneously admitted testimony by Gaylord Simon's wife; (4) that the court erroneously admitted testimony by defendant's former lawyer; (5) that the court did not properly question the jurors about possible prejudicial publicity and contact with third parties; (6) that there was insufficient evidence of obstruction of justice to support the conviction; and (7) that the trial court improperly instructed the jury on the credibility of witnesses.

I

Defendant argues that the trial court should have dismissed the indictment in this case because the government failed to present to the grand jury exculpatory evidence relevant to the conspiracy count. Defendant argues that comments Marcello made during various tape-recorded conversations tended to prove that Marcello did not intend to conspire with defendant. The jury heard some of the evidence defendant claims was exculpatory but convicted him on the conspiracy count nonetheless. Even assuming that Marcello's comments were exculpatory, defendant's argument has no merit. This Court considered a similar claim in United States v. Gutierrez, 696 F.2d 753 (10th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983). In that case we wrote:

"Ordinarily ... an indictment is not subject to challenge on the ground of incompetent evidence. See Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). And thus, 'an indictment returned by a legally constituted and unbiased grand jury, valid on its face is sufficient to call for trial of the charge on the merits.' United States v. Hubbard, 603 F.2d 137, 141 (10th Cir.1979)."

Id. at 754-55.

Defendant does not claim that the indictment in this case is facially invalid. We reject defendant's challenge to the indictment.

II

Before trial defendant moved for a severance of counts sixteen and seventeen. Because all the counts grew out of the same scheme, joinder was proper under Fed.R.Crim.P. 8(a). Defendant argued that evidence on counts sixteen and seventeen would unfairly prejudice the jury against him on the first fifteen counts. Since the trial court entered judgments of acquittal on the first fifteen counts, there was no harm to defendant on those counts. We find no abuse of discretion in the trial court's refusal to sever.

III

Defendant argues that because the trial court entered judgments of acquittal on the first fifteen counts of the original indictment, the government was estopped from proceeding against him on the remaining counts. Defendant cites Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d...