U.S. v. Tomblin

• Decision Date: 24 February 1995
• Docket Number: No. 93-8679,93-8679
• Parties: 41 Fed. R. Evid. Serv. 964 UNITED STATES of America, Plaintiff-Appellee, v. Darrell A. TOMBLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1369

46 F.3d 1369

41 Fed. R. Evid. Serv. 964

UNITED STATES of America, Plaintiff-Appellee, v. Darrell A. TOMBLIN, Defendant-Appellant.

No. 93-8679.

United States Court of Appeals, Fifth Circuit.

Feb. 24, 1995.

Michael D. Bernard (Court-appointed), San Antonio, TX, for appellant.

Laura Ingersoll, Richard C. Pilger, Dept. of Justice, Washington, DC, for appellee.

Appeal from the United States District Court for the Western District of Texas.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion December 30, 5th Cir., 1994, 42 F.3d 263)

Before REYNALDO G. GARZA, WIENER and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Tomblin's Petition for Rehearing by Panel is DENIED; and no member of this panel nor judge in active service on the Court having requested that the Court be polled on rehearing en banc, the Suggestion for Rehearing En Banc is also DENIED. However, we withdraw our prior opinion, United States v. Tomblin, 42 F.3d 263 (5th Cir.1994), and substitute the following:

Darrell A. Tomblin was convicted of bribery (Count 22), conspiracy to commit bribery (Count 1), using interstate travel to facilitate bribery (Counts 2, 4, 6-8, 10-21), aiding and abetting bribery (Counts 5, 9), and extortion (Count 3). He appeals on various grounds. We affirm in part and vacate in part.

I

Tomblin was the coordinating force for a group attempting to develop business opportunities in Grenada and acquire controlling interests in approximately ten failed or failing savings and loan institutions ("S & Ls"). Tomblin believed that United States Senator Jacob "Chic" Hecht of Nevada, whom he had known for several years, would be helpful and interested in these projects due to his position as a member of the Senate Banking and Intelligence Committees.

Because Tomblin lacked the financial assets to forward these plans, he involved two Texas bankers, Leo Ladoucer and Danny Gonzalez, as potential financiers for the ventures. To secure their cooperation in his plans, Tomblin promised Ladoucer and Gonzalez that he would exercise his political influence with Senator Hecht's office to gain assistance in bypassing the regular channels involved in obtaining the approval of the Federal Home Loan Bank Board ("FHLBB") for their takeover of Suburban Savings Association ("Suburban").

Tomblin, Ladoucer, and Gonzalez attempted to accomplish their goals, however, by promising Glen Mauldin, Senator Hecht's administrative assistant and campaign treasurer, a $50,000 campaign contribution, paying Mauldin's expenses for a trip to Texas, and promising him a 10% stake in the Grenadan and S & L ventures. Unbeknownst to Tomblin, Ladoucer and Gonzalez served as government informants and made several recordings of conversations relating to these events.

The involvement of the parties began when Tomblin contacted Mauldin to determine what assistance the Senator's office could provide for the Grenadan business ventures. Mauldin introduced Tomblin to Vincent Lachelli, a Washington, D.C. lobbyist with Grenadan connections, ¹ and at a subsequent meeting, Tomblin offered Mauldin ten percent of the stock in the corporation being set up for the Grenadan venture. ²

Shortly thereafter, George Chall, who was acquainted with Tomblin, introduced Ladoucer to Tomblin. Ladoucer and Gonzalez were seeking investors to buy notes from Suburban in order to improve Suburban's liquidity. Tomblin did not buy any notes; instead, he suggested that Ladoucer and Gonzalez should obtain a waiver from the FHLBB so that they could make more loans. ³ Tomblin offered to use his influence with Senator Hecht to facilitate a meeting between Ladoucer, Gonzalez, and Danny Wall, chairman of the FHLBB. ⁴

Ladoucer and Gonzalez also desired access to Chairman Wall because of the manner in which they had acquired a substantial interest in Suburban. ⁵ The Texas Savings and Loan Department had notified Ladoucer and Gonzalez that they could not exercise the control they had acquired until they received approval for the change of control from the FHLBB. Because their acquisition of Suburban stock had been illegal, their application for control would not survive a regular review by the FHLBB. Absent approval by the FHLBB, their one-million-dollar investment in Suburban was substantially at risk. Consequently, Ladoucer and Gonzalez wanted the meeting with Chairman Wall to see if they could bypass the usual review.

Tomblin promised to help Ladoucer and Gonzalez get a meeting with Chairman Wall, subject to several conditions. First, Ladoucer and Gonzalez had either to pay Tomblin a $100,000 fee for his assistance or make him a $250,000 loan. Tomblin also told Ladoucer and Gonzales that they would have to pay Lachelli a $25,000 lobbying fee and contribute $50,000 to Hecht's campaign fund. Tomblin had Mauldin fly to San Antonio to discuss the planned meeting with Chairman Wall and the arrangements for the campaign contribution.

Ladoucer and Gonzalez complied with most of Tomblin's requests. They paid Mauldin's expenses of $725.15 for the trip, made the $250,000 loan to Tomblin through two Texas shell corporations, and paid Lachelli the $25,000 lobbying fee. In exchange, Tomblin arranged the meeting with Chairman Wall.

At the meeting with Chairman Wall and his assistant, Ray Meyer, Gonzalez discussed the change of control and their hope that the FHLBB would grant forbearance to Suburban. Mauldin also attended the meeting; Meyer testified at trial that Mauldin's attendance was unusual and an indication of Hecht's interest. ⁶

None of the planned ventures ever came to fruition. The FHLBB questioned the application for change of control, and Meyer's cooperation was at best lukewarm. Ladoucer also never made the $50,000 campaign contribution. Although the group continued to pursue the Grenadan venture, indictments against the conspirators short-circuited their plans. ⁷

Tomblin was charged with twenty-two counts of conspiracy to commit bribery, ⁸ bribery, ⁹ using interstate facilities to commit bribery, ¹⁰ aiding and abetting bribery, ¹¹ and extortion. ¹² After a two-week trial that included thirty-five recordings of conversations in which Tomblin had participated and testimony from multiple witnesses including Tomblin himself, Tomblin was convicted on all counts. The district court sentenced him to $5,000 restitution, fifty-one months' imprisonment, and three years of supervised release. Tomblin appeals his convictions and sentence, arguing that 1) the district court should have suppressed the recordings; 2) the district court should not have refused his requested jury instruction on intent to bribe and the evidence was insufficient for the jury to find that he intended to bribe Mauldin; 3) his extortion conviction should be reversed because he was not a public official, the district court improperly refused his requested jury instructions, and the evidence was insufficient to convict him; 4) prosecutorial misconduct prejudiced him; and 5) the district court improperly enhanced his sentence based on Mauldin's official position.

II

A

Tomblin argues that the district court should have suppressed certain recorded conversations because 1) the FBI investigators omitted material exculpatory information from the affidavit they submitted to obtain wiretap authorization, 2) the government failed to maintain proper custody of the tapes, ¹³ and 3) the "consensual" recordings were involuntary.

Tomblin first asserts that, because the FBI omitted information, the affidavit submitted to obtain authorization to monitor certain phone conversations was deficient. We review the magistrate judge's decision for clear error. United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). Although we presume "validity with respect to the affidavit supporting the search warrant," Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), "[d]eference to the magistrate, ... is not boundless.... [T]he deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based." United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984); see also Williams, 737 F.2d at 602 (defining reckless disregard for truth as when reasons to doubt information's veracity are obvious). [T]he challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements or witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient.

Franks, 438 U.S. at 170, 98 S.Ct. at 2684. If the defendant successfully makes this showing, and if the defect in the affidavit is material, the evidence obtained pursuant to the faulty affidavit is inadmissible. Id. at 155-56, 98 S.Ct. at 2676; see also United States v. Stanert, 762 F.2d 775, 780 (9th Cir.1985) (discussing two Franks elements: 1) that intentional or reckless falsity existed, and 2) that absent invalid information, the remaining affidavit is insufficient for probable cause).

Tomblin contends that the investigators omitted information from their affidavits intentionally or with reckless disregard. Omissions or misrepresentations can constitute improper government behavior. Stanert, 762 F.2d at 781 (requiring "a substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the...