Opinion
Criminal Action No. 3:99-CR-084-X.
April 7, 2000
MEMORANDUM OPINION AND ORDER
This public corruption case was tried before a jury on January 11-14, 18-21, and 25, 2000 The jury returned a verdict on January 25, 2000, convicting Defendant Dallas City Councilman Albert Louis Lipscomb of all 65 counts alleged in the Indictment. Before the Court is Defendant's Motion for New Trial Pursuant to Rule 33 ("Motion for New Trial") and Motion for Judgment of Acquittal Pursuant to Rule 29(A) ("Motion for Judgment of Acquittal"), both filed on February 8, 2000, and the Government's Consolidated Responses to Motions for New Trial and for Acquittal, filed on March 6, 2000. For the reasons stated below, both motions are denied.
I. MOTION FOR NEW TRIAL
FED. R. CRIM. p. 33 provides that the district court may grant a new trial "if the interests of justice so require." "A new trial is granted `only upon demonstration of adverse effects on substantial rights of a defendant.'" United States v. Rasco, 123 F.3d 222, 228 (5th Cir. 1997) (quoting United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.), cert. denied, 506 U.S. 918, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992)) cert. denied, 522 U.S. 1093, 118 S.Ct. 868, 139 L.Ed.2d 765; see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d.2d 560 (1979).
Defendant seeks a new trial on the following grounds: the transfer of the trial to the Amarillo Division deprived him of due process and a fair trial; the Court deprived Defendant's rights to due process and a fair trial when the Court made remarks during defense counsel's opening statement to the jury and when the Court instructed the jury at the end of opening statements on the law relating to gratuities and federal officers; the Court erred by denying Defendant's motion for a mistrial after such remarks and instruction; the Court erred by denying Defendant's motion for acquittal made after the conclusion of the evidence; the Court erred by denying the parties' motions for attorney voir dire and by denying the parties' motions to use a jury questionnaire similar to the questionnaires submitted by the parties to assist Defendant in the use of his peremptory challenges; and the Court erred by charging the jury as charged and by refusing to charge the jury as requested by Defendant.
A. Transfer to Amarillo Division
Defendant, an African-American, alleges that he was denied constitutionally protected rights to due process and a fair trial when the Court transferred his trial from the Dallas Division to the Amarillo Division of this District. Defendant argues that the Court abused its discretion by transferring the trial based upon pretrial publicity. Defendant further argues that the transfer resulted in a pool of prospective jurors that was not a fair and representative cross-section of the population in the Dallas Division, and prevented him from being tried by a jury of his peers. Citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 411, 113 L.Ed.2d 411 (1991), Defendant argues that, because census data reveal that the African-American population of the Amarillo Division is much smaller than the Dallas Division, the transfer virtually guaranteed that no prospective juror would be an African-American and jeopardized the "continued acceptance of the laws by all the people," Powers, 499 U.S. at 407, 111 S.Ct. at 1368, resulting in a denial of his constitutional rights.
First, the Court rejects Defendant's argument that the Court abused its discretion by transferring his trial to the Amarillo Division. The Sixth Amendment to the Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed" (emphasis added). Amarillo, Texas is in the Northern District of Texas. In addition, FED. R. CRIM. P. 18 provides that:
Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.
Because the Sixth Amendment and Rule 18 make no reference to a division within a judicial district, a criminal defendant has no Sixth Amendment right to a trial within any particular division of a judicial district. See United States v. McKinney, 53 F.3d 664, 673 (5th Cir. 1995); United States v. James, 528 F.2d 999 (5th Cir. 1976). The district court has "`broad discretion in determining whether transfer [within a judicial district] is warranted.'" United States v. Weddell, 800 F.2d 1404, 1406 (5th Cir. 1986) (quoting United States v. Alvarado, 647 F.2d 537, 539 (5th Cir. 1981)). In exercising this discretion, the district court shall fix the place of trial with due regard to the convenience of the defendant, the witnesses, and the "prompt administration of justice," which includes consideration of any pretrial publicity that may affect the fairness of the trial. See FED. R. CRIM. P. 18; James, 528 F.2d at 1023 (affirming district court's sua sponte transfer from the Jackson Division to the Biloxi Division of the Southern District of Mississippi due to widespread publicity); Weddell, 800 F.2d at 1406 (affirming district court's sua sponte transfer of second trial from Midland to El Paso due to trial publicity after first trial resulted in a mistrial).
As the Court's order of transfer stated, the Court's concern for a proper venue was based on the high-profile nature of this case and the extensive publicity this case had already received and would receive in the future. See Order of Within District Transfer at I [hereinafter Transfer Order]. Specifically, the Court was concerned with such publicity because certain information that had been filed under seal was reported in local newspapers and because the Court feared its impact on the selection of a fair and impartial jury. See Id. at 2. In light of such concerns, and with due regard for the convenience of Defendant and the witnesses, the Court ordered the transfer to the Amarillo Division to ensure a fair trial before an impartial jury that would only consider the facts and the law. See Id at 3. Indeed, no one on the jury panel knew or had even heard of Defendant — the precise result the Court was trying to achieve. As the Court stated after the jury was empaneled:
I am gratified that we accomplished precisely what I wanted to accomplish and that is a roomful of people who don't know anyone and thus will have to base their verdict on the evidence that's presented and on nothing else.
Tr. of Voir Dire at 65 (Jan. 11, 2000). The Court truly could care less about the racial makeup of the jury, but cared very much about having a jury with no preconceived notions for or against Defendant or the Government. Defendant's argument is without merit.
The citations to transcripts of trial proceedings cite certified unofficial transcripts prepared by the court's reporter. The citations' page references will be different when compared with certified official transcripts when they are prepared by the reporter.
Second, Defendant's argument that the transfer resulted in a pool of prospective jurors that was not a fair and representative cross-section of the population in the Dallas Division, and prevented him from being tried by a jury of his peers, is baseless. While the Sixth Amendment requires that a jury be selected from a representative cross section of the community, see Taylor v. Louisiana, 419 U.S. 522, 526, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975), the representative cross section requirement "is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does)." Holland v. Illinois, 493 U.S. 474, 480, 110 S.Ct. 803, 807, 110 L.Ed.2d 803 (1990). "A [criminal] defendant is denied equal protection of the laws when tried before a jury from which members of his or her race have been excluded by the [prosecutor's] purposeful conduct." Powers, 499 U.S. at 404, 111 S.Ct. at 1367. "Although a defendant has no right to a `petit jury composed in whole or in part of persons of [the defendant's] own race,' he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria." Id. (quoting Strauder v. West Virginia, 100 U.S. 303, 305, 25 L.Ed. 664 (1880)) (internal citation omitted). However, "[d]efendants are not entitled to a jury of any particular composition." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42L.Ed.2d 690 (1975). All the jurors in Defendant's trial were selected pursuant to nondiscriminatory criteria established by the Court and approved by the Fifth Circuit. See 28 U.S.C. § 1861; Miscellaneous Order No. 5 (N.D. Tex. 1998) (Jury Plan). This criteria includes selection from driver's license records in addition to voter registration records for the explicit purpose of making jury panels more diverse. See Id, ~ V.(A). Moreover, the Court called a pool of prospective jurors twice as large as the usual number for a criminal trial to get the broadest cross section of the community as possible.
Finally, Defendant's contention that the transfer "virtually guaranteed" that no prospective juror would be an African-American in violation of his constitutional rights is absurd. Nowhere does the Constitution or any act of Congress provide that an African-American defendant is entitled to a jury composed of a certain percentage of African-Americans. Batson and Powers are irrelevant because those cases forbid the prosecution from exercising peremptory strikes to purposefully exclude potential jurors because of race. See Batson, 476 U.S. at 89, 106 S.Ct. at 1719; Powers, 499 U.S. at 404, 111 S.Ct. at 1365. More importantly, Baston and Powers held that a criminal "defendant does not have a right to a jury panel composed in whole or in part of persons of his own race," but only "a right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria." Batson, 476 U.S. at 85-86; Powers, 499 U.S. at 404, 111 S.Ct. at 1367. As noted above, the Court's transfer of this case was within its discretion. Defendant has made no allegation and presented no evidence that prospective jurors in the Amarillo Division were not selected by nondiscriminatory criteria. There was no systematic exclusion of anyone of any race or ethnic group. The jury was selected pursuant to nondiscriminatory criteria under 28 U.S.C. § 1861 and this District's procedure for implementing § 1861. See Miscellaneous Order No. 5. Simply because the African-American population in the Amarillo Division is lower than the Dallas Division, it does not necessarily follow, or even suggest, that Defendant's constitutional rights to a pool of prospective jurors representing a fair cross-section of the community was violated. See James, 528 F.2d at 1023. If Defendant's argument is taken to its logical conclusion, no African-American could ever be tried in the Amarillo Division of the Northern District of Texas, and all African-Americans who have been incarcerated in the Amarillo Division after a jury trial should be released.
B. Court's Comments on Opening Statement
Defendant next alleges that the Court deprived his rights to due process and a fair trial when the Court made remarks during his counsel's opening statement to the jury and when the Court instructed the jury at the end of opening statements on the law relating to gratuities and federal officers. Defendant adds that the Court erred by denying Defendant's motion for a mistrial after such remarks and instruction.
"In a federal trial the court need not merely act as a moderator of the proceedings. The court may comment on the evidence, clarify the facts presented, and elicit facts not yet adduced. Even if the trial court makes an improper comment to the jury, the error does not entitle a defendant to a new trial unless the comment is substantial error and prejudicial to the defendant's case." United States v. Mitchell, 166 F.3d 748, 752 (5th Cir. 1999) (footnotes and citations omitted). of course, the Court should never assume the role of advocate for one side or the other, and in making this determination the record is examined as a whole. See Id.
The purpose of an opening statement is for counsel to tell the jury what the evidence in the trial will show so that the jury has a context or framework in which to put the evidence as it comes from the witness stand. It is not a blank check to plant seeds in a jury's mind of things that are not true and thus cannot possibly be shown by the evidence.
When Defendant's attorney, Billy Ravkind, told the jury in his opening statement that co-defendant Floyd Richards decided to plead guilty only after learning that the trial would be held in Amarillo as ordered by the Court on December 20, 1999 (no one but the Court and its staff knew of the Court's decision to make the within district divisional transfer until December 20, 1999), the Court interrupted and admonished him that his statement was incorrect. See Tr. of Opening Statements of Counsel at 53-55 (Jan. 11, 2000). Taking the high road, even if Mr. Ravkind had a good-faith basis for making that allegation, the Court's comment was neither substantial error nor prejudicial because what Mr. Ravkind was telling the jury was proven to be not true. When Defendant, through counsel, moved for a mistrial after the opening statement, the Defendant was invited to call Mr. Richards' attorney, Reed Prospere, outside the presence of the jury to establish the facts concerning Mr. Ravkind's claims to the jury. Mr. Ravkind declined to do so. The Court had to call Mr. Prospere outside the jury's presence to establish the truth, and Mr. Prospere testified as follows:
COURT: When did Mr. Richards decide to plead guilty and testify against Councilman Lipscomb?
MR. PROSPERE: I don't know the exact date that he reached that decision. It was communicated to me that he was desirous of following that course of action sometime during the week that would have begun — Friday was [December 17th]. So it would have been — my best recollection would have been — it would have been communicated to me sometime around Tuesday or Wednesday of that week.
COURT: And was an agreement that week negotiated with Mr. Uhl [the Government's attorney]?
MR. PROSPERE: I went down on the — I believe the Thursday of that week and came to what I believed to be an understanding in principle.
So, in my mind, Thursday we had an agreement in principle.
COURT: At the time that you negotiated the plea and he agreed to plead guilty . . . did you and he and indeed everyone else believe that any trial of this case would be in Dallas, Texas?
MR. PROSPERE: [I]t was our assumption at that point in time that the trial was going to be held in Dallas because that would have been done prior to the pretrial.
COURT: Well, I guess, cutting to the point, did the Court's decision to move the trial to Amarillo cause Mr. Richards to plead guilty?
MR. PROSPERE: Not in my opinion.
COURT: [Addressing Mr. Ravkind] [D]id you not make this statement — and I even asked you about it again by name — that "Reed Prospere told me the reason Floyd Richards pled guilty in this case is because the trial had been moved to Amarillo."
MR. RAVKIND: Absolutely told you that.
COURT: [Addressing Mr. Prospere] And is that true? Did you tell him that?
MR. PROSPERE: I did not tell him that statement.
Tr. of Reed Prospere Testimony at 14-15, 27 (Jan. 12, 2000). Despite Mr. Ravkind's contention, and despite his representation to the Court that he would ask Mr. Richards when he testified whether he decided to plead guilty before or after the Court's transfer order, Mr. Ravkind, or any of Defendant's attorneys, completely failed to do so. In fact, when Mr. Richards took the stand, the Court, on its own motion after the jury was excused, again had to make the record on this issue, and asked the following:
COURT: Mr. Richards, when did you decide to plead guilty in this case? Do you remember the day?
MR. RICHARDS: About — I think it was exactly a week before the pretrial. It was either Tuesday or Wednesday before. I had a meeting with my lawyers. . . .
COURT: That's when you made the decision?
MR. RICHARDS: Yes, sir,
Tr. of Floyd Richards Testimony at 111 (Jan. 18, 2000). Mr. Ravkind was invited by the Court to cross-examine Mr. Richards on this issue, but he declined to do so. The testimony of Mr. Prospere and Mr. Richards simply undercut any credibility of Defendant's untrue assertion to the jury during the opening statement that Mr. Richards pleaded guilty only because the Court transferred this trial. Moreover, defense counsel's refusal to ask Mr. Richards whether he decided to plead after the transfer only points to the conclusion that Mr. Ravkind's statement in his opening statement was pursued in bad-faith, a statement the Court correctly addressed by admonishing Mr. Ravkind.
In addition, the Court's instruction at the end of opening statements on the law relating to gratuities and federal officers was within the discretion of the Court. A Court may instruct the jury on the law at any time during the proceedings. See United States v. Barnett, 945 F.2d 1296, 1299 (5th Cir. 1991). By correcting Mr. Ravkind's suggestion that his client was not guilty because he merely received money just as politicians receive money as campaign contributions, the Court exercised its discretion by clarifying the jury on the law relating to gratuities and bribes to prevent Mr. Ravkind from improperly confusing the jury. See Tr. of Opening Statements of Counsel at 65-66. Moreover, even if such instruction, or for that matter the previous admonition, were error, it was neither substantial error nor prejudicial because the Court instructed the jury to consider only the facts from the witness stand and law applicable to this case. See Court's Instructions to the Jury at 4; Mitchell, 166 F.3d at 752-53.
C. Denial of Motion for Acquittal After Evidence
Defendant alleges that the Court erred by denying Defendant's motion for acquittal made after the conclusion of the evidence, Specifically, Defendant argues that the Government failed to adduce evidence sufficient to prove beyond a reasonable doubt that Defendant corruptly accepted or agreed to accept the money from his co-defendant with the intent to be influenced or rewarded. Defendant also argues that the Government failed to establish the $5,000 jurisdictional prerequisite for each substantive count charged in the Indictment under § 666(a)(1)(B) because the Government aggregated the value of five specific votes alleged in the Indictment despite the fact that no money was ever tied to any specific vote. Defendant adds that there was no "meeting of the minds" or agreement sufficient to satisfy the necessary intent to prove the existence of a conspiracy to violate § 666(a)(1)(B).
A motion for acquittal must be denied if, "viewing all the evidence and drawing all reasonable inferences in favor of the verdict, a reasonable trier of fact could find that the evidence establishes the guilt of the defendant beyond a reasonable doubt." Rasco, 123 F.3d at 228 (citing United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.), cert. denied, 506 U.S. 918, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992)).
Defendant's arguments for acquittal are unpersuasive. Title 18, U.S.C. § 666(a)(1)(B) prohibits a covered individual who
corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.
The Government adduced the following relevant evidence to support the charges that Defendant corruptly accepted or agreed to accept the money from Mr. Richards with the intent to be influenced or rewarded:
1. After he began receiving $1,000 monthly payments in U.S. currency delivered in white envelopes from Mr. Richards, Defendant changed his position on taxicab issues to favor positions of Yellow Cab, which was owned by Mr. Richards. Defendant previously supported the small, independent operators against Yellow Cab, but when the payments began he flip-flopped and began supporting Yellow Cab.
2. Defendant received over $100,000 in benefits from Mr. Richards and never reported any of it, including a Cadillac in addition to the cash payments.
3. Mr. Richards testified that Defendant expected the money. He also testified that he expected Defendant to vote in his favor. He testified that they had an understanding.
4. Defendant admitted that he did not report the money on at least three financial disclosure forms.
5. After the Government's investigation became public, Defendant lied to the city attorney when finally confronted with recuse from consideration of taxicab issues, and when he did recuse from voting, he nevertheless lobbied the transportation committee of the City Council to support Yellow Cab.
6. After being notified of the Government's investigation, Defendant changed the character and description of the money on his previous tax returns.
7. In a post-indictment local television interview, Defendant lied and denied receiving money from Mr. Richards. At trial Defendant changed his story and admitted taking the monthly cash payments.
8. Mr. Richards testified that they had an unwritten understanding of what was to be done in return for the money.
A reasonable trier of fact could find that such evidence (as well as much more not chronicled here) established Defendant's guilt beyond a reasonable doubt.
Defendant's jurisdictional amount argument also fails. The plain language of § 666(a)(1)(B) prohibits a covered individual from accepting or agreeing to accept anything of value intending to be influenced or rewarded in connection with "any business, transaction, or series of transactions of [the covered] organization, government, or agency involving anything of value at $5,000 or more." The Government adduced evidence that the taxicab related issues that came before the City Council were "business" or "a series of transactions" valued at well over $5,000 at any time, including the issues relating to Bandera Taxi's authorization, increasing Yellow Cab's fleet, taxicab age limits, and taxicab insurance requirements. Thus, each monthly payment constituted a"thing of value" punishable under § 666(a)(1)(B) as a separate count. See United States v. Marmolejo, 89 F.3d 1185, 1194 (5th Cir. 1996), aff'd sub nom. United States v. Salinas,U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997).
Finally, Defendant's argument that there was no meeting of the minds or agreement is incorrect. Mr. Richards testified that he expected Defendant to vote in his favor, and that there was an unwritten understanding. Defendant's actions testified about at trial corroborated the existence of an agreement. Because a conspiracy need not be proven by a written agreement and can be proven by an implicit understanding, Defendant's allegation fails. United States v. Duke, 233 F.2d 897, 900-01 (5th Cir. 1956). A fact-finder is entitled to draw inferences and make logical deductions from the evidence. United States v. Cluck, 143 F.3d 174, 179 (5th Cir. 1998). Thus, the Court correctly denied Defendant's motion for acquittal because there is ample evidence for a reasonable juror to find Defendant guilty beyond a reasonable doubt. In fact, in the context of Rule 29, this case isn't even a close call. The evidence of guilt upon which a juror could base a verdict was overwhelming.
Jury Voir Dire
Defendant argues that the Court erred by denying the parties' motions for attorney voir dire of the jury panel and by denying the parties' motions to use a jury questionnaire similar to the questionnaires submitted by the parties to assist Defendant in the use of his peremptory challenges. Specifically, Defendant argues that the Court's voir dire failed to address concerns about Defendant's past civil rights activities and acts of civil disobedience. Defendant adds that the Court's questionnaire neglected to inquire about such areas as racial attitudes and the civil rights movement in Texas and the South during the 1960s and 1970s. Defendant also argues that the Court erroneously denied Defendant's motion for additional peremptory challenges.
FED R. CRIM. P. 24(a) provides that
The court may permit the defendant or the defendant's attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or the defendant's attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.
"The trial court has broad discretion to determine who will question potential jurors and what questions will be asked." Rasco, 123 F.3d at 231 (citing Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1634-35, 68 L.Ed.2d 22 (1981)). Whether examination of prospective jurors is adequate depends upon "whether the means employed to test impartiality have created a reasonable assurance that prejudice be discovered if present." United States v. Greer, 968 F.2d 433, 435 (5th Cir. 1992) (en banc) (internal quotation marks omitted). "The issue is whether sufficient questions were asked to ferret out any bias, not whether specific questions were asked." Id. at 437.
The Court denies this ground for a new trial because Defendant has failed to prove that the Court's voir dire, use of a different questionnaire, and denial of additional peremptory strikes denied him a substantial right. This Court had never used a jury questionnaire before this trial, and to accommodate Defendant's request it used one similar to one used in Texas State Courts. That Defendant complains that because his multi-page questionnaire with Defendant's spin was not used shows that no good deed will go unpunished. A defendant has no right to subject a jury panel to any questionnaire.
The Court's voir dire and questionnaire adequately addressed whether any prospective juror harbored any prejudice due to race or any other reason that would prevent the juror from being fair and impartial in deliberating the case. The Court dealt head-on with the issue of racial prejudice in the voir dire. The Court specifically asked whether any prospective juror had
any reservation whatsoever about your ability to base your verdict on the law and the evidence and not have any — because of things that have happened in your background, any type of bad relationship you may have had with an African-American, anything that would cause Mr. Lipscomb to be concerned about having you on this jury because of him being an African-American?
Tr. of Voir Dire at 39-40 (Jan. 11, 2000). Thus, it was unnecessary for the Court to ask Defendant's proposed questions. See Rosalez-Lopez, 451 U.S. at 192-93, 101 S.Ct. at 1636; Ham v. United States, 409 U.S. 524, 527, 93 S.Ct. 848, 850, 35 L.Ed.2d 46 (1973) ("[T]he trial judge was not required to put the question [of possible racial prejudice against the defendant — an African-American civil rights activist — on trial for drug possession] in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by [the defendant].").
Moreover, Defendant did not properly submit his request for additional voir dire questions to the Court. At the December 20, 1999, pretrial hearing and before voir dire, the Court specifically informed both parties that the Court would conduct the examination of prospective jurors based on its customary practice under Rule 24(a) and on any additional questions as the Court deems proper. Defendant did not submit proposed voir dire questions but did submit the proposed questionnaire discussed above. After the Court conducted the examination and before the prospective jurors were excused, the Court specifically asked counsel for both parties to approach the bench and submit off record to the Court any other questions they wished to ask the jury panel. See Tr. of Voir Dire at 57. The parties submitted additional questions and the Court asked them. The Court does not recall being asked to ask the questions of which Defendant now complains. After addressing the parties' additional questions to the prospective jurors, the Court ended voir dire and excused them for lunch so that the parties could exercise their juror challenges. No timely objection was made at that time. After the prospective jurors were excused, Defendant's counsel rose and asked the Court for additional questions, stating that he erroneously believed that the prospective jurors would be invited back after lunch for further voir dire examination. See Id. at 66. Defendant's counsel also stated that he needed thirty minutes of additional voir dire examination to "ventilate" any prejudices the jury panel would have against Defendant's past civil rights activities or against anyone involved in the civil rights movement. See Id. The Court denied this request because, as the Court made explicitly clear at the pretrial hearing and during the voir dire, the Court would conduct the voir dire examination of the prospective jurors and ask any follow-up questions submitted by the parties it deems proper. Any additional questioning after the prospective jurors were excused was untimely requested and would nonetheless be superfluous in light of the questions on racial prejudice the Court had already asked the prospective jurors. As the Court stated in denying Defendant's request, there comes a time when the voir dire ends, and the trial must begin. Thus, the Court properly denied Defendant's request.
Moreover, Defendant fails to explain how the denial of his proposed voir dire questions denied him a substantial right. There is no constitutional right to ask specific voir dire questions. See Ristanio v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 1020, 471. Ed.2d 258 (1976). Even assuming that Defendant's proposed questions on the civil rights movement and civil disobedience were relevant to his defense, such questions are not required by the Constitution. See Ham, 409 U.S. at 527, 93 S.Ct. at 850. The only possible constitutional issue raised by Defendant's proposed questions is whether any prospective juror espoused feelings of racial prejudice against Defendant because he is African-American, which the Court squarely addressed by directly asking the prospective jurors if they did have such feelings. See Id. The Court's voir dire examination was sufficient to ferret out any bias.
Finally, Defendant offers no basis on which the denial of additional peremptory challenges denied him a substantial right. Under FED. R. CRIM. p. 24(b) and (c), Defendant was given eleven peremptory challenges. Defendant has no right to additional peremptory challenges. See United States v. Martinez-Salazar, ___ U.S. ___, 120 S.Ct. 774, 779, 145 L.Ed.2d 792 (2000); FED. R. CRIM. P. 24(b); Estes v. United States, 335 F.2d 609, 615 (5th Cir.), cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1964). Because the Court's voir dire examination was sufficient to ferret out any bias against Defendant, additional peremptory challenges were unnecessary. Furthermore, the Court rejects any complaint by Defendant that the denial of additional peremptory challenges prevented him from effectively using his challenges on any other basis than ventilating the civil rights issues. Defendant was represented by five attorneys who reviewed the questionnaires submitted by the jury panel whereas the Government reviewed the same questionnaires with only two attorneys. Defendant's contention that additional peremptory challenges were necessary to "digest the information in the questionnaires and use [his] challenges more effectively," Tr. of Voir Dire at 77, is unfounded and without merit.
E. Jury Instructions
Defendant argues that the Court erred in instructing the jury. Specifically, Defendant argues that the Court erred by submitting the aiding and abetting instruction pursuant to 18 U.S.C. § 2 in conjunction with a co-conspirator liability instruction as provided in Pinkerton v. United States, 328 U.S. 640, 67 S.Ct. 26, 90 L.Ed. 20 1489 (1946). Defendant adds that by submitting a charge that included both an aiding and abetting instruction and the Pinkerton instruction, the Court created confusion in the minds of the jury members regarding the necessary facts and findings which had to be made in order to convict Defendant of Counts 34-65 of the Indictment. Defendant also argues that the Court erred by instructing the jury that it could find Defendant guilty of § 666(a)(1)(B) if it found that Defendant had accepted a "gratuity" because § 666(a)(1)(B) does not cover gratuities.
Both arguments are unpersuasive. First, a jury may convict based on either Pinkerton liability or aiding/abetting liability pursuant to § 2. The Supreme Court has held that
The rule of [Pinkerton] does service where the conspiracy was one to commit offenses of the character described in the substantive counts. Aiding and abetting has a broader application. It makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy. And if a conspiracy is also charged, it makes no difference so far as aiding and abetting is concerned whether the substantive offense is done pursuant to the conspiracy. Pinkerton v. United States is narrow in its scope. Aiding and abetting rests on a broader base; it states a rule of criminal responsibility for acts which one assists another in performing. The fact that a particular case might conceivably he submitted to the jury on either theory is irrelevant. It is sufficient if the proof adduced and the basis on which it was submitted were sufficient to support the verdict.Nye Nissen v. United States, 336 U.S. 613, 619, 69S.Ct. 766, 770, 93 L.Ed.2d 919 (1949) (emphasis added). Here the evidence was more than sufficient to support the verdict under either theory. Thus, Defendant's argument fails.
Second, contrary to Defendant's argument, § 666 does include gratuities. Section 666(a)(1)(13) prohibits the receipt of "anything of value" intending to be influenced or rewarded. In Marmolejo, the Fifth Circuit held that "anything of value" "is broad in scope and contains no language restricting its application to transactions involving money, goods, or services." Marmolejo, 89 F.3d at 1191. In affirming Marmolejo, the Supreme Court held that § 666(a)(1)(B) "encompasses all transfers of personal property or other valuable consideration in exchange for the influence or reward." Salinas, 522 U.S. at 56. Leaving aside for a moment that when one receives a gratuity he is being "rewarded," whether the payments are a "bribe" or a "gratuity" is an irrelevant distinction as long as the Government proves that the payments were corruptly received with the intent to be influenced or rewarded. Because the Court instructed, and the jury found, that a conviction under § 666(a)(1)(B) must be predicated on corrupt intent, the conviction must stand.
II. MOTION FOR JUDGMENT OF ACQUITTAL
Defendant seeks a judgment of acquittal on the following grounds: the Government failed to adduce sufficient evidence that the funds were illegal bribes; the Government failed to establish the jurisdictional prerequisite for each substantive count of the Indictment, rendering the application of § 666 to Defendant unconstitutional; the Government failed to present any evidence of a connection between the alleged bribes and a federally funded program as required by § 666; and the Government failed to present any evidence sufficient to convict Defendant of aiding and abetting Co-Defendant Floyd Richards. Because the first and second grounds were already addressed above, see supra Part I.C., the Court's discussion is limited to the third and fourth grounds.
Defendant's motion for acquittal must be denied. First, the Government presented sufficient evidence of a connection between the alleged bribes and a federally funded program, and because such evidence need not have an effect on the federal program under which the funds are supplied. The Fifth Circuit has held that § 666(a)(1)(B) "casts a broad net to encompass local officials who may administer federal funds, regardless of whether they actually do." United States v. Westmoreland, 841 F.2d 572, 577 (5th Cir. 1988). Although in Salinas the Supreme Court did not state whether some other connection between a bribe and the federal expenditure is necessary, under Westmoreland the Government presented sufficient evidence of a connection between federal funds and the payments. The Government adduced evidence proving that the City of Dallas received approximately $40 million from the federal government in each of the years in which Defendant conspired to violate § 666(a)(1)(B) and (a)(2). The Government also adduced evidence that in any one-year period covered by the Indictment more than $10,000 of such funds were spent on improvements to Love Field Airport, which the taxicab industry serviced. The Government also adduced evidence that Defendant voted on the acceptance and disbursement of such funds.
Second, the Government presented evidence sufficient to convict Defendant of aiding and abetting Mr. Richards in violating § 666(a)(2), which punishes anyone who
corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or a series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.
Title 18, U.S.C. § 2(a) punishes as a principal anyone who "aids, abets, counsels, commands, induces or procures" the commission of an offense. "To aid and abet simply means to assist the perpetrator of a crime while sharing the requisite criminal intent." United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995). Contrary to Defendant's argument that he could not have aided and abetted Mr. Richards' giving or offering of money in violation of § 666(a)(2). Defendant received the money and the Government offered evidence that Defendant induced or procured Mr. Richards' to violate § 666(a)(2) by entering into an agreement with him.
III. CONCLUSION
For the reasons stated above, Defendant's Motion for New Trial Pursuant to Rule 33. and Motion for Judgment of Acquittal Pursuant to Rule 29 (a), are hereby DENIED.
It is so ORDERED.