U.S. v. Zimmermann

• Decision Date: 17 December 2007
• Docket Number: No. 07-1062.,07-1062.
• Citation: 509 F.3d 920
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Dean ZIMMERMANN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

509 F.3d 920

UNITED STATES of America, Plaintiff-Appellee, v. Gary Dean ZIMMERMANN, Defendant-Appellant.

No. 07-1062.

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2007.

Filed: December 17, 2007.

Daniel M. Scott, argued, Minneapolis, MN, for appellant.

Michael L. Cheever, Asst. U.S. Atty., Minneapolis, MN (Lisa D. Kirkpatrick, on the brief), for appellee.

Before MURPHY, MELLOY, and SMITH, Circuit Judges.

MURPHY, Circuit Judge.

A jury found Gary Dean Zimmermann guilty of three counts of accepting a gratuity in violation of 18 U.S.C. § 666(a)(1)(B). He appeals, arguing that there was insufficient evidence to support the verdict and that the district court¹ abused its discretion by limiting the number of defense witnesses. We affirm.

I.

Gary Dean Zimmermann represented the sixth ward on the Minneapolis City Council from 2002 until 2005 and was one of the six members on the council's zoning and planning committee. The boundaries of the sixth ward were redrawn in a 2002 redistricting plan which did not include Zimmermann's residence. He and fourteen other plaintiffs sued to set aside the plan, and they incurred approximately $100,000 in legal fees by the time of the acts charged in the indictment.

Real estate developer Gary Carlson was planning a multimillion dollar mixed use project known as Chicago Commons on the edge of the sixth ward. His concept was to have condominiums on the upper floors and service oriented retail stores on the ground level, such as a grocery, coffee shop, and dry cleaner. Carlson estimated that his potential profit from the project would be eight million dollars. One of the problems he faced, however, was that the zoning classification for the property would permit only two retail spaces in the building and this would limit his ability to market the project as a full service living environment. In order to obtain more retail space, Carlson submitted a rezoning application to the city planning department in the fall of 2004. Such an application would be reviewed by a staff member who would then make a recommendation on it to the city planning commission which would give its assessment to the council's zoning and planning committee on which Zimmermann sat. Zimmermann's committee would then recommend to the city council whether the application should be granted.

Carlson recognized that his rezoning application faced opposition due to neighborhood resistance to additional retail in the area. Although his Chicago Commons project was located in the eighth ward, it was right across the street from Zimmermann's sixth ward and an establishment known as Village Market. Village Market was an indoor bazaar at 24th Street and Chicago Avenue which catered to the Somali-American community. This market and its surrounding area had experienced problems of overcrowding, poor management, violence, and drug trafficking. The fact that the owner of Village Market, Azzam Sabri, had originally been involved in the development of Chicago Commons contributed to a neighborhood group's opposition to additional retail space for the project because of concern that the project would attract similar problems to those plaguing Village Market.

Carlson met Zimmermann at city hall in the fall of 2004, and the two saw each other again a few months later, but on neither occasion did they engage in substantive conversation. During their third meeting at a groundbreaking ceremony, however, Zimmermann solicited $100,000 from Carlson for the legal bill he and the other plaintiffs had incurred in their unsuccessful challenge to the redistricting plan. When Carlson offered to negotiate with the plaintiffs' attorney for a reduced fee, Zimmermann lowered the amount of his request, saying that $40,000 would "make [the attorney] go away." On May 20, 2005 Carlson and Zimmermann ran into each other again, and Zimmermann asked whether Carlson had given further thought to their previous discussion about money. Carlson told Zimmermann that he could help, and Zimmermann stressed that the issue was urgent. Carlson stated that this conversation prompted him to contact the FBI the next business day and that he then began acting as a cooperating witness.² All his further conversations with Zimmermann were undertaken and recorded at the direction of the FBI.

On June 6, 2005 Carlson attended a fundraiser for Zimmermann at the Black Forest Inn. While wearing a wire, Carlson requested Zimmermann's help to lobby planning commission members in advance of the upcoming vote on his rezoning application. Zimmermann agreed, and Carlson responded that he would "give [Zimmermann] some help." Carlson asked Zimmermann what he could do to help, and Zimmermann replied "money, money, money." Zimmermann suggested that the redistricting lawsuit attorney would likely write off the entire bill but that a donation by Carlson of four to five thousand dollars would demonstrate good faith. They agreed to keep Carlson's contribution between the two of them. Carlson then proposed "Okay. You give me your vote, get me that vote, and get me my help through there, I'll take care of you. Okay?" Zimmermann replied, "Okay. You got it." Later Zimmermann talked about trying to raise more money for his campaign and referred to the contribution limit of $300 per person. He suggested having Carlson donate in the names of his "cousins."

On June 14, 2005 Carlson and Zimmermann met at a Minneapolis restaurant. Carlson wore both a hidden camera and an audio recording device. At the beginning of their conversation, Carlson handed Zimmermann $5,000 and stated "Before I forget, Dean. Ah. This is for that attorney thing or whatever we talked about." The video showed Zimmermann taking the money and putting it in his pocket and recorded Carlson saying "So, use it what [sic] you want." The rest of the conversation focused on Carlson's rezoning issue and what could be done at the zoning and planning committee in light of the planning commission's decision to recommend denial of his zoning application. The two also discussed ways to infuse money into Zimmermann's campaign.³ Zimmermann suggested using straw donors and having Carlson pay them a little extra to say that the contributions came from them.

The zoning and planning committee recommended denying Carlson's rezoning request on July 14, 2005. Zimmermann did not arrive at the meeting until after the vote was taken on Chicago Commons, but he was present when the city council unanimously denied Carlson's application on July 23. During a conversation on August 3, Carlson referred to the $5000 he had given Zimmermann and asked what had prevented his rezoning application from passing the zoning and planning committee. Zimmermann explained there had been strong opposition to additional retail in the area due to its proximity to the Village Market and the problems associated with it.

On August 15, 2005 Zimmermann and Carlson met at a potential site for a new Somali mall. The site was located approximately a mile from Chicago Commons at East Franklin and Cedar Avenue. Carlson wanted to develop the new Somali mall to divert merchants and business away from Village Market in an effort to eliminate opposition to his Chicago Commons rezoning application. Carlson and Zimmermann talked about the issues involved in receiving city approval for the new mall and Carlson asked for Zimmermann's help in getting the project through the city council. During this discussion Carlson gave Zimmermann $1200 in campaign contribution envelopes with the names of four straw donors. Carlson told Zimmermann that he had given the "donors" a little extra so that they would verify that the contributions were theirs.

Carlson went to Zimmermann's home on August 31, 2005. While there Carlson gave Zimmermann $1000 in an unmarked campaign contribution envelope and suggested that the money was from people who wanted Zimmermann reelected. Carlson told Zimmermann to write in the donor names himself and stated, "That's for getting us the zoning over there," referring to the zoning for the development of the new Somali mall. Zimmermann replied "So ... alright."

Zimmermann went to Chicago Commons on September 8, 2005 to meet with Carlson but instead found two FBI agents who wanted to talk with him. The agents asked him about the payments from Carlson. Zimmermann denied having received any money from Carlson and claimed that he had instructed Carlson to send money for the redistricting lawsuit directly to the plaintiffs' attorney. The agents warned Zimmermann not to lie. At that point Zimmermann admitted that he had received $1200 in campaign donation envelopes from Carlson but claimed that he still had the funds because he had had suspicions about the validity of the contributions. The agents then showed him the video of his June 14 meeting where he had accepted $5000 from Carlson. Zimmermann admitted that he had accepted that money in addition to the $1200 he had previously acknowledged. He again stated that he had not received any other funds from Carlson. After being confronted with the recording of the August 31 meeting, he admitted that he had in fact received an additional $1000. He claimed that all of the funds were in a desk drawer at his home.

On January 18, 2006 a federal grand jury returned a four count indictment against Zimmermann. Each count alleged that Zimmermann knowingly and corruptly solicited something of value with intent to be influenced or rewarded in connection with business with the government of the City of Minneapolis in violation of 18 U.S.C. § 666(a)(1)(B). Count one involved the $5000 that Zimmermann received from Carlson regarding his rezoning application for Chicago Commons. Counts two and three pertained to the $1200 and $1000 payments that Zimmermann received from Carlson related to obtaining city approval for a new Somali mall. Count four concerned a 2004 request by Zimmermann to have a retaining wall...