USA v. Carmichael

• Decision Date: 20 June 2000
• Docket Number: No. 99-5179,99-5179
• Citation: 232 F.3d 510
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Lawrence Ray Carmichael, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 510

232 F.3d 510 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Lawrence Ray Carmichael, Defendant-Appellant.

No. 99-5179

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 20, 2000

Decided and Filed: October 20, 2000

Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 98-00076--Karl S. Forester, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, Edwin J. Walbourn III, UNITED STATES ATTORNEY, Covington, Kentucky, for Appellee.

Ned B. Pillersdorf, Joseph R. Lane, PILLERSDORF, DeROSSETT & BARRETT, Prestonsburg, Kentucky, for Appellant.

Before: KEITH, DAUGHTREY, and GILMAN, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. KEITH, J. (pp. 523-28), delivered a separate dissenting opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Lawrence Ray Carmichael, formerly a Commonwealth attorney for three counties in eastern Kentucky, was convicted of extorting money from a local bookmaker in violation of the Hobbs Act, 18 U.S.C. § 1951. He was sentenced to twenty-seven months of incarceration and two years of supervised release. For the reasons set forth below, we AFFIRM Carmichael's conviction.

I. BACKGROUND

In late November or early December of 1997, a man named Rodney Adams was charged with wanton endangerment or assault (the record is not clear on this point) in Kentucky state court in one of the counties within Carmichael's jurisdiction. Adams owned a pawn shop and commercial rental property in Somerset, Kentucky. He also ran a thriving (and illegal) bookmaking operation and poker game out of his pawn shop. Adams's bookmaking operation, in which he handled bets for players from Kentucky, Tennessee, and Alabama, grossed up to $400,000 per week, and resulted in net profits of up to $150,000 per week. He also had a criminal record consisting of a 1979 conviction for robbery and a 1989 conviction for cocaine possession.

Adams, worried about being indicted as a result of the 1997 criminal charge, directed his attorney, Mark Knight, to telephone Carmichael. As a Commonwealth attorney, Carmichael was responsible for prosecuting individuals who are charged with felonies. Carmichael told Knight that the county attorney could handle the matter. Because county attorneys in Kentucky prosecute persons accused of misdemeanors, but not felonies, the obvious implication of this statement was that Carmichael was not interested in prosecuting the offense as a felony. Carmichael, however, could have charged Adams with a felony for the offense in question.

During the conversation, Carmichael asked Knight if Adams would be willing to donate several hundred dollars to pay for Christmas decorations in Carmichael's office. (Carmichael was not allowed to use state funds for the decorations.) Knight relayed the request to Adams, who agreed to pay on the basis that Carmichael was the highest-ranking law enforcement officer in the county and that it would be foolish to "make him mad for $500." Carmichael knew about Adams's illegal gambling business and Adams knew that Carmichael had the power to shut it down and have Adams arrested. Under the circumstances, Adams thought it would have been "very stupid" not to pay Carmichael.

Knight asked Carmichael for purchase receipts and Carmichael obliged, giving Knight receipts acknowledging the payment for Christmas decorations of more than $500. Adams reimbursed Carmichael, although the amount was more than he had expected. The county attorney's office subsequently agreed to dismiss the pending charges against Adams after the passage of sixty days. At the end of the sixty days, the charges were dismissed with prejudice.

In January of 1998, Carmichael asked Adams to assist him in the investigation of an individual named Jerry McKinney. The precise nature of this investigation cannot readily be ascertained from the record, although it apparently related to homemade sex videos that involved prominent individuals. Adams agreed, and Carmichael arranged for Adams to meet with Kentucky State Police Detective David Mirus.

At the first meeting between Adams and Det. Mirus, Carmichael introduced Adams as "a bookie," although Carmichael said he was not interested in prosecuting Adams. Carmichael promised Adams that his name would not be used in the investigation. At this point, Carmichael had already acquired one of McKinney's sex videos, and Adams promised Carmichael that he would be able to obtain a second. After he had discussed the investigation of McKinney with Adams, Det. Mirus learned that Adams's name had come up in an ongoing drug investigation, although it was later determined that the allegations regarding Adams's involvement were "unfounded."

On March 19, 1998, Carmichael told Knight that he had "received word" that Adams was interested in making a very large campaign donation. Carmichael also told Knight that Adams's name had come up in the course of a federal investigation and that he knew that Adams had "been wiring large sums of money, cash from a truck stop in the Somerset area." During the conversation, Carmichael added that he had "lived up to his end of the deal on the McKinney matter, that Rodney's name had been kept secret, had not been used, [and] had not been made public." Finally, Carmichael said that Adams "had stepped on some of the toes of the Feds in [the] McKinney investigation." Carmichael suggested that Knight ask his client for $100,000 in cash, which would go into a slush fund of Carmichael's creation to be spent on political campaigns of Carmichael's choice. The request, Carmichael told Knight, was based on the reasoning that if Knight asked for $100,000, Adams might be inclined to give $50,000.

On March 21, 1998, Knight reported to Adams that Carmichael had requested $100,000 from him "to distribute for campaign funds," but hoped to get $40,000 or $50,000. Knight repeated to Adams what Carmichael had said about Adams's name "coming up" in the course of an ongoing federal investigation. Adams "freaked out" at this news, and reported Carmichael's request to County Attorney Fred Niekirk and Det. Mirus in the belief that Carmichael was making an oblique threat that Adams would be prosecuted if he did not give Carmichael $40,000 or $50,000. Two days later, Carmichael summoned Adams to his office, explaining that he preferred not to talk on the telephone. As requested, Adams went to Carmichael's office, meeting with him in a conference room.

Carmichael said that he appreciated Adams's help and had kept Adams's name out of the McKinney investigation. He also told Adams that he had "an idea" that could help Adams, but wanted to be "very careful." According to Adams, the idea consisted of Adams delivering a manila envelope containing $50,000 in cash to Knight's office, where it would be picked up by Knight's secretary. The money was to be used to help several local officials, including the county sheriff and eventually Carmichael himself, secure re-election. Carmichael and Adams agreed to meet the next day. Adams then left Carmichael's office through the back door, as Carmichael had instructed.

The next day, Adams telephoned Carmichael and arranged to meet him at a Burger King restaurant. Adams had in hand $5,000 in bait money that had been provided by Det. Mirus. At the Burger King, Adams offered Carmichael the $5,000 and promised him that more money would be forthcoming. Carmichael opened his briefcase and Adams put the money inside. Adams suggested that some of his gambling associates were willing to contribute to Carmichael's slush fund because they "were not hurting nobody" and preferred that local law enforcement authorities let them gamble in peace. Carmichael replied, "I think we have an understanding."

Two days later, Carmichael called Adams to arrange a meeting at which Adams would make the next payment. The police planned to videotape this meeting, but the meeting was aborted because Carmichael discovered that the police were watching him. About an hour after Carmichael detected the surveillance, Kentucky State Police Lieutenant Jerry Provence and Captain Larry Lewis interviewed Carmichael.

Carmichael insisted that he was trying to set Adams up, instead of the other way around. He claimed that a police officer had approached him and told him that Adams was interested in buying influence among local political officials, and was prepared to contribute substantial sums of money to various campaigns in order to carry out his plan. (The police officer that Carmichael identified as having told him this later denied having any such conversation with either Adams or Carmichael.)

Carmichael initially asserted that he told David Guffy, a detective under his command, that Adams was under investigation, and that he had dispatched Det. Guffy to Knight's office to pick up Adams's attempted payoff and then to take it home. At that point, Carmichael said, he and Det. Guffy would "figure out what to do with it next." Carmichael, however, subsequently admitted that he had only told Det. Guffy to pick up a package, and that he never told him that the package was supposed to contain bribe money that was evidence in an ongoing official-corruption investigation. In fact, no law enforcement officer (other than Carmichael and possibly Det. Guffy) knew anything about Carmichael's supposed investigation of Adams.

Carmichael was indicted and charged with two counts of extortion in violation of the Hobbs Act. Count I of the indictment pertained to the alleged extortion of $500 for Christmas decorations at Carmichael's office. Count II pertained to the alleged extortion of slush fund contributions. At the close of the government's case, Carmichael moved for a judgment of acquittal. The district court granted the motion as to Count I of the...