U.S. v. Whitt

• Decision Date: 30 September 1983
• Docket Number: No. 82-2213,82-2213
• Citation: 718 F.2d 1494
• Parties: 14 Fed. R. Evid. Serv. 944 UNITED STATES of America, Plaintiff-Appellee, v. James Louis WHITT, aka Jim Whitt, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1494

718 F.2d 1494

14 Fed. R. Evid. Serv. 944

UNITED STATES of America, Plaintiff-Appellee, v. James Louis WHITT, aka Jim Whitt, Defendant-Appellant.

No. 82-2213.

United States Court of Appeals, Tenth Circuit.

Sept. 30, 1983.

Gene Stipe, Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks, McAlester, Okl. (Anthony M. Laizure, McAlester, Okl., also on brief), for defendant-appellant.

Gary L. Richardson, U.S. Atty., Muskogee, Okl. (Scott Landon, Asst. U.S. Atty., Muskogee, Okl., also on brief), for plaintiff-appellee.

Before HOLLOWAY, McWILLIAMS and SEYMOUR, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant James Whitt brings this timely appeal from his conviction on thirty counts of mail fraud and three counts of extortion, 18 U.S.C. Secs. 1341 and 1951 respectively. This prosecution was one of many that resulted from an extensive investigation by the F.B.I., the I.R.S., and the United States Attorneys for Oklahoma. The focus of the investigation was the payment to some county commissioners of kickbacks, i.e., bribes, by vendors of equipment and supplies purchased by the counties for road construction, bridge repair, etc.

Defendant Whitt was a county commissioner in Seminole County, Oklahoma. He was charged under the mail fraud statute, 18 U.S.C. Sec. 1341 (and 18 U.S.C. Sec. 2, punishing, as principals, aidors and abettors and those causing an offense to be committed by another person), with defrauding the citizens of Seminole County of their right to have county government conducted honestly and impartially, and with using the mails in furtherance of the kickback scheme. See, e.g., United States v. Mandel, 591 F.2d 1347, 1362 (4th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). Additionally defendant Whitt was charged with extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951, based on his obtaining the kickbacks "under color of official right," allegedly obstructing or affecting interstate commerce. See, e.g., United States v. Hall, 536 F.2d 313, 320 (10th Cir.1976), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976).

The government's witnesses at trial included several vendors who said they had made illegal payments to Whitt. Each of these witnesses had made an agreement with the United States Attorney to testify in exchange for being allowed to plead guilty to one count of conspiracy to commit mail fraud and to evade taxes, which count was to include all transactions for which the individual could have been charged. ¹

In his defense, Whitt called several witnesses who testified to his good reputation in the community. Several vendors who had dealt with Whitt testified that they had never made payments to Whitt and that he had never requested any kickbacks. A former I.R.S. agent testified that he had studied Whitt's tax returns for the years in question, along with other financial records provided by Whitt, and had found no evidence of unreported income. Finally, Whitt testified in his own defense, denying that he had ever solicited or accepted kickbacks.

On appeal, Whitt claims there was reversible error in that (1) the voir dire examination of prospective jurors by the trial court was not adequate to assess the jurors' impartiality in view of the voluminous publicity generated by the county commissioner scandal, and the trial judge failed to question the jurors individually, outside the presence of the other jurors; (2) the routine mailings of county warrants were not made in execution of the alleged scheme to defraud so as to establish a mail fraud case; (3) the evidence on the extortion counts was not sufficient to establish the connection with interstate commerce required by the Hobbs Act; and (4) the trial court erred in instructing the jury on the depletion of assets theory which was not alleged in the indictment. We now consider Whitt's arguments for reversal.

I

The voir dire

Defendant-appellant Whitt asserts that there was reversible error in connection with the voir dire. He contends that the extent of the court's voir dire of the prospective jurors was inadequate to test the jurors for impartiality in light of the extensive pretrial publicity concerning the county commissioners in the State of Oklahoma.

Whitt notes that all but one juror had read or heard something about the ongoing county commissioner investigations and claims that the trial court had a duty to inquire into "the sources, nature and extent of the information each juror had been exposed to" in order to ascertain the impact of the publicity. (Brief of Appellant at 17). Whitt says that the voir dire was so limited that the trial court could not objectively assess the impact of the pretrial publicity on the jurors and thus could not determine whether or not it affected their partiality. Whitt relies heavily on Silverthorne v. United States, 400 F.2d 627 (9th Cir.1968), cert. denied, 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633, where the court stated "that in the absence of an examination designed to elicit answers which provide an objective basis for the court's evaluation, 'merely going through the form of obtaining jurors' assurances of impartiality is insufficient [to test that impartiality].' " Id. at 638 (quoting United States v. Denno, 313 F.2d 364, 379 (2d Cir.1963), cert. denied, 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143).

Although Whitt lodged a timely request that defense and government counsel be permitted to conduct the voir dire of the jury (I R. 19), the trial court conducted the voir dire itself as authorized by Rule 24(a) F.R.Crim.P. ² And it has generally been the practice in this circuit for the court to ask the questions. United States v. Grismore, 546 F.2d 844, 848 (10th Cir.1976); United States v. Hall, 536 F.2d 313, 324 (10th Cir.1976), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285. The purpose of the voir dire procedure is to enable the parties to obtain an impartial jury, Brown v. New Jersey, 175 U.S. 172, 175, 20 S.Ct. 77, 78, 44 L.Ed. 119 (1899); United States v. Crawford 44 F.2d 1404, 1405 (10th Cir.1971), and it achieves that purpose by laying "the predicate for both the judge's and counsel's judgment about the qualifications and impartiality of potential jurors. Without an adequate foundation, counsel cannot exercise sensitive and intelligent peremptory challenges, that suitable and necessary means of ensuring that juries be in fact and in the opinion of the parties fair and impartial." United States v. Baker, 638 F.2d 198, 200 (10th Cir.1980).

Where there is the possibility or likelihood that potential jurors have been exposed to prejudicial publicity, they must be questioned with special care so as to insure that such publicity did not result in bias. ³ United States v. Hall, supra, 536 F.2d at 324; Silverthorne v. United States, 400 F.2d 627, 637-38 (9th Cir.1968), cert. denied, 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633; 8A Moore's Federal Practice, p 24.03 (1982). Our canvass of the record in this regard is limited by the principle that voir dire is within the sound discretion of the trial court, Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976), and the court's exercise of that discretion will not be disturbed, absent a clear showing of abuse. United States v. Polk, 550 F.2d 1265, 1267 (10th Cir.1977), cert. denied, 434 U.S. 838, 98 S.Ct. 129, 54 L.Ed.2d 100; United States v. DePugh, 452 F.2d 915, 921 (10th Cir.1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2452, 32 L.Ed.2d 805.

Here the trial court asked numerous questions of the jury array. Before the panel of twenty-eight prospective jurors was chosen, the court asked the entire venire if any of them had heard or read of this particular case, three prospective jurors indicated that they had, and, after further questioning of those three, the court excused one of them because he had already formed an opinion as to the guilt or innocence of the defendant. (Voir Dire R. 7-8). The other two indicated that they had not formed an opinion as a result of hearing or reading about the case. The court also asked if anyone had not heard of the case, if anyone was personally acquainted with counsel or the defendant, and whether there was any reason why they may not be fair and impartial to both sides in the case. (Voir Dire R. 8-13).

A panel of twenty-eight potential jurors was then seated and, at the outset, the court determined that all but two of the twenty-eight had heard or read of the general investigation into county commissioner practices. (Voir Dire R. 18-19). The court then asked whether any of the commissioners in the jurors' respective counties had been charged in connection with the investigation, seven responded affirmatively, and the court proceeded to press those seven as to whether that might influence them in any way. As a result of this questioning, the trial judge asked one potential juror to step down because she responded indecisively to his questions, the judge concluding that she "may have trouble putting out the decision in another case from [her] mind." (Voir Dire R. 20). ⁴

The court also asked the panel general questions propounded in most cases. The potential jurors were asked if they, or members of their immediate families, were ever county employees or involved in law enforcement and numerous individuals were questioned about their professions. Those working in sales or as purchasing agents were sought out and questioned as to whether or not they had ever been involved in the type of business transaction alleged in the instant case and the witness lists of the prosecution and defense were read aloud to determine if anyone on the panel was acquainted with any of the witnesses. The court also asked, at the lawyers' request, whether any of the panel served as jurors in another county commissioner prosecution and those who had were further questioned as to whether the prior case had made an...