U.S. v. Tunnell

• Decision Date: 17 February 1982
• Docket Number: 81-2293,Nos. 81-2095,s. 81-2095
• Citation: 667 F.2d 1182
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Perry Russell TUNNELL, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1182

667 F.2d 1182

UNITED STATES of America, Plaintiff-Appellee, v. Perry Russell TUNNELL, Defendant-Appellant.

Nos. 81-2095, 81-2293

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 17, 1982.

R. L. Whitehead, Jr., Longview, Tex., for defendant-appellant.

Christian Harrison, Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Texas.

Before BROWN, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

Perry Russell Tunnell was indicted for a RICO substantive and a RICO conspiracy offense, 18 U.S.C. §§ 1962(c) and 1962(d), together with Odessa Mae (Mildred) French and King Russell. Prior to trial Russell pled guilty to misprision of a felony. The jury found Tunnell and French guilty on both counts. Thereafter, pursuant to special findings by the jury, the court ordered the forfeiture under 18 U.S.C. § 1963(a) of the Pines Motel, owned by Tunnell.

In 1967 Tunnell purchased the Pines Motel at Kilgore, Texas. For over three decades, the motel had been known as a place of prostitution. When Tunnell was imprisoned for tax evasion in 1974, he leased the motel to French for one year. Following two successive annual renewals, a five year lease was executed in 1977. In each instance, the lease payment was $1,500 per month.

The government maintains that Tunnell and French jointly operated the Pines Motel as a place of prostitution and that they bribed law enforcement officials, specifically King Russell, a Justice of the Peace, and Dwight Watson, a local constable, to permit their operations. Russell testified that he had an arrangement with Tunnell whereby Tunnell reimbursed him the sums he paid the prostitutes at the motel. The testimony of several witnesses-including prostitutes, motel employees, and law enforcement officials-linked Tunnell to the prostitution activities and to the corruption of the constable and the justice of the peace.

Tunnell admitted knowing Russell and Watson, acknowledged the longstanding reputation of the motel, but denied knowledge of any bribes and the reimbursement scheme.

As consolidated for our consideration, Tunnell raises eight issues on appeal: (1) whether reimbursement of a peace officer for monies paid to a prostitute constitutes bribery; (2) whether the securing of "sexual favors" for a peace officer constitutes bribery; (3) whether sufficient evidence of the charged bribery offense in 1974 was produced; (4) whether sufficient evidence was adduced to demonstrate aiding and abetting in the RICO predicate offenses; (5) whether he was denied the sixth amendment right to confrontation when the government used Russell's videotape testimony; (6) whether the district court erred in allowing the videotape testimony into evidence without the government first securing a certificate from the Attorney General as prescribed by 18 U.S.C. § 3503; (7) whether the forfeiture of the motel under 18 U.S.C. § 1963(a) constituted cruel and unusual punishment forbidden by the eighth amendment; and (8) whether error occurred in the form of the submission of the special verdict on the forfeiture issue. Our discussion of these issues in part overlaps.

Bribery

In the predicate offenses underlying the RICO indictment, Tunnell was charged with bribing law enforcement officials and with aiding and abetting French in certain acts of bribery. The government accused Tunnell of paying Russell to disregard his official duties, contrary to article 36.02 of the Texas Penal Code. ¹ Russell testified that Tunnell reimbursed sums Russell paid the prostitutes at the Pines Motel. In return, Russell considered the prostitutes "his girls" and protected them from prosecution. The government contends that this conduct violated article 36.02.

Tunnell insists that the charged conduct constituted a violation of article 36.07 of the Texas Penal Code which states:

(a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer any benefit on a public servant for the public servant's having exercised his official powers or performed his official duties in favor of the actor or another ....

(c) An offense under this section is a Class A misdemeanor.

Article 36.07 involves a misdemeanor; article 36.02 involves a felony. Advancing the well-established principle that if two legal provisions apply, one general and one specific, the specific takes precedence, Tunnell argues that his conduct is punishable by the misdemeanor statute since it is more specific. If this contention is correct, this criminal act may not serve as a RICO predicate offense because by definition, the "racketeering activity" proscribed by RICO relates only to state offenses punishable by imprisonment for more than one year. 18 U.S.C. § 1961(1). A violation of article 36.07 is not punishable by imprisonment for more than one year. However, we do not find Tunnell's reasoning persuasive.

It is apparent from the text of article 36.07 that the proscribed offense concerns a payment or "gift" for past actions of the public servant. If any doubt exists in that regard, it evaporates with a reading of the commentary following the article which informs that the section involves an implied bribery for future conduct of the public employee. The commentary further notes: "This offense is a lesser included offense of bribery ...." Assaying the conduct of Tunnell and French as charged and proven against the backdrop of articles 36.02 and 36.07, we are convinced that article 36.02 is applicable. In any event, given the language and rationale of our decision in United States v. Salinas, 564 F.2d 688 (5th Cir. 1977), we conclude that the evidence produced supports the propriety of the charge under article 36.02.

We similarly reject Tunnell's contention that French's action in furnishing the services of a prostitute free of charge to the peace officers does not constitute the predicate crime of bribery. Tunnell would limit the term "benefit" to pecuniary gain, citing Texas Penal Code article 1.07(a)(6), which provides: "In this code ... 'benefit' means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested."

The evidence in the record establishes the economic value of the services of a prostitute. These services were provided at no cost. This constitutes the bestowing of an economic gain, a benefit, upon the recipient public official. The argument to the contrary is not convincing.

Time of Bribery

Tunnell contends that the government failed to establish the acts of bribery allegedly committed in February and March of 1974. In response to a motion for a bill of particulars, the government stated that Tunnell furnished Russell with the sexual company of Linda Angelo on March 2 or 3, 1974. The evidence establishes that Ms. Angelo had been shot in the course of a robbery on March 2 and had not been with Russell on either date. Because the evidence does not prove the exact date detailed in the bill of particulars, Tunnell argues that this predicate crime is not proven and the RICO offense based thereon is not supported. We cannot agree.

In this circuit, it is established that the prosecution is "not required to prove the exact date; it suffices if a date reasonably near is established." United States v. Grapp, 653 F.2d 189, 195 (5th Cir. 1981) (citing Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970) ("within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient.")). See United States v. Vahalik, 606 F.2d 99 (5th Cir. 1979). In view of the evidence in this case, the precise date of the offense is not significant.

The record contains ample evidence that the named prostitute did engage in sexual relations with the justice of the peace. Both testified to the fact of the sexual relations, although Russell was uncertain of the dates. The prostitute attested to having sexual intercourse with Russell on three occasions. Her testimony indicates that these acts occurred during a six month period from October 1973 to March 1974. Other evidence reflects that during 1974 Tunnell reimbursed Russell for monies he paid prostitutes at the Pines Motel. We find no merit in this assigned error.

Aiding and Abetting

Tunnell challenges the sufficiency of the evidence relating to his aiding and abetting French in her acts of bribery. Specifically, Tunnell argues that the mere act of leasing his motel to French, even with knowledge that she intended to conduct a prostitution operation on the premises, is not enough to link him to the bribery of public officials as a principal under 18 U.S.C. § 2. While simple presence at the scene of a crime is insufficient to convict one of aiding and abetting, United States v. Longoria, 569 F.2d 422 (5th Cir. 1978), the record establishes that Tunnell played an active role in the prostitution business and in the corruption of local officials. He obviously was more involved than he was prepared to admit.

Testimony received at trial demonstrated that Tunnell often ran the prostitution business, even though French had leased the motel. He personally passed approval on new prostitutes, bribed the local justice of the peace and constable, told others about the operation, and bragged that if it "wasn't for his politicking ... Mildred (French) and Watson wouldn't have a job." In short, the record is replete with evidence that Tunnell possessed active knowledge of the racketeering operations conducted on the motel premises and involved himself in these activities.

Confrontation Right and the Sixth Amendment

Shortly before the trial of French and Tunnell was to commence, Russell suffered a stroke. He was scheduled to testify as a prosecution witness. Russell's hospitalization obviated the possibility of his testifying in court. The trial was...