United States v. Turner , 684 F.3d 244 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1129
UNITED STATES,
Appellee,
v.
CHARLES TURNER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Thompson, Circuit Judges.
Charles W. Rankin, with whom Michelle Menken and Rankin &
Sultan were on brief, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
July 11, 2012
LYNCH, Chief Judge. A federal jury convicted Charles
Turner of one count of attempted extortion under color of official
right in violation of the Hobbs Act, 18 U.S.C. § 1951, and three
counts of making a false statement in violation of 18 U.S.C.
§ 1001. Turner, at the time of his trial and since 2000, was a
member of the Boston City Council. The indictment charged Turner
with making false statements to FBI agents and accepting $1,000 in
exchange for performing official acts to assist a local businessman
in obtaining a liquor license for a planned supper club in the
Roxbury neighborhood of Boston. That businessman, Ronald Wilburn,
was in fact cooperating with the FBI.
Turner's appeal challenges his convictions and his
sentence. As to the Hobbs Act count, he argues both (1) that the
district court's jury instructions on two elements (reciprocity and
interstate commerce) constituted plain error, so he is entitled to
a new trial, and (2) there was insufficient evidence to satisfy
those same two elements and so he is entitled to a judgment of
acquittal on that count. He does not seek a judgment of acquittal
on the three false statement counts. Turner also argues he is
entitled to a new trial based both on purported errors in the
admission of certain evidence and on the prosecution's closing
argument. Finally, Turner challenges his thirty-six month sentence
based on a contention that the government impermissibly sought
vindictively to punish him.
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We affirm Turner's convictions, deny his requests for a
new trial, and affirm his sentence.
I.
The evidence presented at trial is described in the light
most favorable to the jury's guilty verdict. See United States v.
Manor, 633 F.3d 11, 12 (1st Cir. 2011).
In early 2007, before he began working with the FBI,
Ronald Wilburn was attempting to secure needed local government
permission to open a supper club called Déjà Vu at the Crosstown
Development Center in the Roxbury neighborhood of Boston. Sales of
alcohol were to be a large portion of the club's revenue. Wilburn
turned to two local elected officials for support: state Senator
Diane Wilkerson and Councillor Turner; the Crosstown project was in
the districts each represented. Wilburn applied for an all-alcohol
license1 from the Boston Licensing Board ("Board") in January 2007
and supported his application with a letter from Turner. The
letter was prepared by Wilburn's lawyer and signed by Turner;
Turner was not paid for the letter. Wilburn had a hearing before
the Board in March 2007. In April the Board rejected his
application because, it said, the location was not conducive to
having a supper club and because the venue was too large. Wilburn
1
There were two types of liquor licenses discussed at trial.
One was a beer and wine license, the other an all-alcohol license,
which allows the holder to sell all kinds of alcohol, including
beer, wine, cordials, and hard liquor. Wilburn sought the latter,
which is also called an "A" license.
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submitted a new floor plan to the Board in May or June of 2007, but
the Board did not change its decision.
The FBI had received information that Wilburn and a
business associate had made payments to Senator Wilkerson in
exchange for her help with an earlier business venture and in
obtaining a lease for the supper club space at the Crosstown
project. The FBI approached Wilburn with this information, and
Wilburn began working with the FBI in late February 2007. At the
request of the FBI, Wilburn met with Wilkerson on five occasions,
starting on June 5, 2007, and offered her money in exchange for her
assistance in securing an all-alcohol license for his Crosstown
project supper club. Wilburn made two cash payments -- $500 and
$1000 -- to Wilkerson in June 2007.
After these payments, Wilkerson began working at both the
state and local levels to secure the license for Wilburn. One such
effort was an e-mail she sent on June 28, 2007, to some members of
the Boston City Council, including Turner, asking for a hearing on
the subject of liquor licenses. Her e-mail explained that of sixty
liquor licenses recently granted to the City of Boston by the
Massachusetts legislature, none had gone to businesses in the
Dorchester and Roxbury portions of an "Empowerment Zone" in Boston.
Her e-mail singled out two applications from those neighborhoods:
one was Wilburn's for the Déjà Vu supper club in Roxbury, and
another was for a restaurant in Dorchester called "Poppa B's."
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Turner responded positively to Wilkerson's e-mail the next day.
His purported reason for seeking to hold hearings on the denial of
liquor licenses was to investigate issues raised by liquor licenses
not going to establishments in the Empowerment Zone. During a
conversation between Wilkerson and Wilburn in early July 2007,
Wilkerson stated that Turner "was going to help out and talk to the
right people" and that he was going to set up a city council
hearing.
On July 10, 2007, Turner filed an order with the city
council requesting a hearing "to discuss the decision making
process that led to the denial of licenses in an area of the
Empowerment Zone in need of economic development." The order was
co-sponsored by several other city councillors and specifically
mentioned the Crosstown Development, where Wilburn planned to
locate his supper club. The order was introduced in the city
council on July 11, 2007, and referred to the Economic Development
and Planning Committee, chaired by Councillor Linehan.
After Turner's positive response to Wilkerson's e-mail,
the FBI asked Wilburn to meet with Turner "to feel him out to see
if he was so inclined, as Senator Wilkerson was, to accept money on
behalf of official acts." Wilburn agreed.
Wilburn first met with Turner in his Boston City Hall
office on July 25, 2007. At this time the city council hearing on
the denial of liquor licenses in the Empowerment Zone which Turner
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had requested had not yet been scheduled. During this meeting,
which was captured by a recorder Wilburn wore, Wilburn thanked
Turner for his support of Wilburn's liquor license application.
Turner said that he already "knew [Wilkerson] was working with"
Wilburn on the matter of the liquor licenses. Turner told Wilburn
that he had "everything set up to have a hearing." Turner also
connected himself to Wilkerson, saying he did not yet want to set
a date for the hearing "without her saying, yeah, that fits her
strategy." Turner asked whether Wilburn and Wilkerson were still
"interested in going forward," and Wilburn indicated that they
were. The men discussed the issue of the licenses further, then
while Wilburn waited Turner called Senator Wilkerson's and
Councillor Linehan's offices to set a date for the hearing. Even
though the hearing would involve several attendees, Turner only
coordinated schedules with Linehan, whose committee the hearing
would be before, and with Wilkerson, but not with anyone else.
During this July 25 meeting, Wilburn told Turner four
separate times that he wanted to hold a fund-raiser for Turner to
thank him for his support. Turner thanked him and they discussed
a location for the fund-raiser -- a club in Roxbury called "Slades"
-- and they talked about a time: a Saturday afternoon around 3:00
P.M. Turner said that "would be wonderful" and gave Wilburn his
wife's phone number to coordinate the fund-raiser.
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On August 2, 2007, at the direction of the FBI, Wilburn
met with Wilkerson in a restaurant near the State House and gave
her another payment of $1,000. This payment, captured on
videotape, was in exchange for her performing official duties to
help get Wilburn a liquor license.
The next morning, August 3, 2007, Turner called Wilburn
at his home and asked Wilburn to come to Turner's Roxbury district
office later that day to talk about the liquor license. Wilburn
reported this phone call to the FBI agent handling the case, and
the agent outfitted Wilburn with an audio/visual recording device
and gave him $1,000 in fifteen bills to give to Turner at the
meeting. This phone call was not recorded. Wilburn testified that
his daughter was at home at the time he received the call and that
he did not use the recording equipment because he did not want her
to know he was working with the FBI. At trial, Turner denied that
he made the call.
That afternoon, Wilburn arrived at Turner's Roxbury
office and waited to speak with Turner. Turner's office was fairly
small, and Wilburn testified that when he did get to speak to
Turner there were other people within earshot, so he "really
couldn't say what [he] wanted to say."
Wilburn told Turner that he had "[h]eard some good things
about" Turner. Wilburn then said, "I wanted to do something for
you and your wife and I talked to Diane [Wilkerson], again this
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morning. I think we talked about that. . . . I met with her and,
uh, about the hearing that you're gonna be doing." Turner
responded with affirmative "Mm-hmm's." Wilburn also said, "I'm
really grateful because it's really hard to get somebody to stand
up for you in a fight and I just wanted to stop by and just . . .
give you, take your wife out to do dinner and do something nice."
To which Turner replied, "Oh, that'd be, yup."
The two men went on to discuss scheduling issues
regarding the hearing on the denial of liquor licenses. Turner and
Wilburn then had the following exchange:
Wilburn: I told [Wilkerson] that I'd talk to
you and, I was gonna stop by and show
my gratitude.
Turner: Mmm-hmm.
Wilburn: And then, you know, after the
hearing, I want to show my gratitude
again.
At this point in the conversation, Wilburn handed Turner the $1,000
in fifteen bills given to him by the FBI agent earlier in the day.
The jury watched a video of the handover of the cash, recorded by
a concealed camera that Wilburn wore. In the foreground is
Wilburn's hand holding rolled-up money. Wilburn then passes the
rolled-up money to Turner, who takes the money in his hand without
looking down.
The exchange continued:
Turner: Hey, (unintelligible).
Wilburn: You know, so . . .
Turner: Like that.
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Wilburn: You, you take the wife to dinner
and . . .
Turner: All right.
Wilburn: and, and, and, uh, have some fun.
Turner: Okay.
(Ellipses in original.) The two men then discussed Wilburn's plans
to resubmit his liquor license application to the Board.
Later in the same conversation, Wilburn and Turner had
this exchange:
Wilburn: And, and I just want you to know
that, you know, you take care of me,
I take care of you.
Turner: Hey.
Wilburn: And this is, what you have is my
gratitude.
Turner: [Unintelligible.] All right.
Wilburn: Okay? And I'll talk to you after the
hearing.
Turner: Okay.
Wilburn: And we'll set something else up and
we'll go ahead.
Turner: Yeah. Sounds like fun.
At trial, Wilburn testified that when he said, "[Y]ou take care of
me, I take care of you," he meant, "Help me get the license, and I
help you out" by giving Turner "money." The two then exchanged
phone numbers.
During this conversation Turner had continued holding on
to the rolled-up cash and shifted it from his right hand to his
left hand. When he opened a green composition book to write down
Wilburn's phone number, he did so with his thumb and index finger
of his left hand, the money clutched in his fist. Turner and
Wilburn then talked some more about the details of the Crosstown
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project and had the following exchange as the conversation came to
a close:
Wilburn: But a, again, your, your support has
been tremendous . . .
Turner: Mm-hmm.
Wilburn: . . . and I'll talk to you, uh,
before the hearing.
Turner: Hey.
Wilburn: And I'll talk to you after the
hearing.
Turner: All right.
Wilburn: And we'll set up and I'll take care
of you again.
Turner: All right. Take care.
(Ellipses in original.)
After this August 3 payment of $1,000, Turner never
contacted Wilburn to speak about the money Wilburn gave him or to
give the money back. Wilburn's comments made it clear this was not
a campaign contribution, that they would talk before and after the
hearing, and after the hearing Wilburn would "take care of [Turner]
again." Further, Turner did not ever characterize this $1,000 as
a campaign contribution or list it on his disclosure forms. He
testified that he knew the campaign finance laws and knew that he
could not accept cash donations over $50 or donations in any form
from a single individual over $500 in a given year.
The following week, on August 8, 2007, Turner left
Wilburn a recorded voice message updating him on his efforts in
regard to the hearing. Turner's message informed Wilburn that the
hearing could not take place on August 15 as planned due to
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scheduling problems. But Turner assured Wilburn that the hearing
would be rescheduled.
In late July and early August, while Turner was working
on scheduling the city council hearing on liquor licenses,
Wilkerson was also making progress on getting Wilburn his liquor
license. Wilkerson had been in contact with a man named Arthur
Winn regarding Wilburn's liquor license, and Winn in turn put
Wilburn in contact with an attorney named Steven Miller. Miller
told Wilburn that for a fee of $1,500, he would "pass [Wilburn's
liquor license application] on to Daniel Pokaski," who was chairman
of the Boston Licensing Board at the time, "and not to worry about
it." Wilburn paid Miller the $1,500 with money given to him by the
FBI.
The plan was for Wilburn to accept a beer and wine
license at first, and then later he would receive an all-alcohol
license. The idea was that this would be done through a plan under
which the state legislature would grant additional liquor licenses
to the City of Boston through a "Home Rule" petition. The whole
deal was contingent on making sure that the city council hearing
Turner had been planning did not take place. Given these changes,
Wilburn and the FBI determined that it would not be in Wilburn's
interests to go forward with Turner's planned city council hearing
on the denial of liquor licenses. Wilburn testified at trial:
"[W]e didn't need a hearing. All we needed was a liquor license."
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On August 13, 2007, Wilburn telephoned Turner and
recorded the conversation. Wilburn told Turner that he had talked
to Wilkerson and told her that he was willing to accept the beer
and wine license and wait for the all-alcohol license because "that
would be the best way for us to proceed." Turner initially
responded that he was going ahead with the hearing because he
wanted to put a "spotlight" on the licensing issue. Wilburn asked
Turner whether, if "they" could find an all-alcohol license for
Wilburn's supper club right away, Turner would then withdraw his
hearing request. Turner responded by telling Wilburn that "if they
really would like the hearing not to take place . . . and they can
give you an [all-alcohol] license . . . I would be willing to pull
back on the hearing." Turner eventually agreed to postpone his
city council hearing on the subject of denial of liquor licenses.
That hearing never took place. Wilburn received a beer and wine
license on August 15, 2007.
The "Home Rule" petition providing for new liquor
licenses for the City of Boston was brought before the city council
on September 12, 2007. On that day Wilburn, again outfitted by the
FBI with recording devices, went to City Hall to meet with Turner.
The plan was for Wilburn to offer Turner a second cash payment,
this one of $600. Before meeting with Turner, Wilburn spoke with
Turner's secretary at Turner's City Hall office, and she asked him
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if he had money. Wilburn told her he did not. The secretary then
brought Wilburn to meet Turner.
Wilburn thanked Turner for his vote in favor of the Home
Rule petition and suggested they have lunch together later in the
week because Wilburn had "a little something to give" Turner. They
made plans for lunch, Turner asked for Wilburn's phone number, and
the men parted without Wilburn's having given Turner the $600.
Wilburn testified that he did not give Turner the $600 that day
because he had already told Turner's secretary that he did not have
money with him, and she was standing close by during his
conversation with Turner. Turner did not call Wilburn after their
September 12 meeting at City Hall, and the two men did not meet for
lunch as they had discussed or have any further contact.
On October 31, 2007, Déjà Vu received an all-alcohol
license from the Licensing Board after Pokaski and Miller, the
attorney, got in touch. This license was not attributable to the
Home Rule petition that passed the Boston City Council, as that
petition was still pending in the state legislature at this time.
The Home Rule petition eventually died in the state legislature.
Turner did not call for any hearings on the subject of denial of
liquor licenses or a new Home Rule petition.
The FBI continued its investigation of Wilkerson for
about a year. On October 27, 2008, the government filed a
complaint against Wilkerson, and the next morning the FBI arrested
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her and executed search warrants, served subpoenas, and conducted
interviews with persons involved in the investigation, including
Turner. FBI agents Cowley and Keelan met with Turner that morning
at his City Hall office.
The agents told Turner that Wilkerson had been arrested
earlier that morning on public corruption charges. They told him
the charges stemmed from her taking money in exchange for
performing acts in regard to a liquor license issue. Turner agreed
to speak with the agents. He told them that Wilkerson had
contacted him regarding a proposed restaurant in the Crosstown
Development that had been denied a liquor license because of what
she believed was racial bias. Turner said he suggested holding a
city council hearing to examine how liquor licenses are
distributed, and he recounted the various officials with whom he
had discussed the issue. He said that he talked with Wilkerson on
the phone two to four times about the issue.
Turner told the agents that he had concluded that racial
bias was not a factor in the decision not to grant the license
applications, and that he eventually concluded there was no need to
hold a hearing after Wilkerson informed him that she was moving
forward with the Home Rule petition to obtain more liquor licenses
for Boston. Turner told the agents that he may have spoken to one
of the principals of the Crosstown Development restaurant on the
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phone, but that they never had an in-person meeting and he could
not remember the man's name.
Asked whether Turner knew Ron Wilburn, Turner said
Wilburn's name sounded familiar, but he did not know him. After
being shown a photograph of Wilburn, Turner said he may have seen
Wilburn in the community, but he did not know him. In response to
a series of direct questions about Wilburn, Turner told the agents
that Wilburn had never offered him anything and never offered to
hold a fund-raiser for him, that he had never had a meeting with
Wilburn and had never met him, and that Wilburn had never offered
him any money or paid him any money.
Turner checked his computer's calendar for a record of
any meeting with Wilburn and told the agents he did not find any.
At this point Turner became agitated and told the agents that the
FBI was a racist organization. In his testimony, Turner himself
characterized this as a "diatribe." After the agents finished
their line of questioning, Turner asked them whether anyone other
than Wilkerson's attorneys had access to or could read the charges
against her. The agents told him that the charges would be made
public and then they left Turner's office.
Later that day, Turner called Agent Cowley and berated
her, accusing the agent of setting him up and violating his civil
rights.
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II.
On April 7, 2009, a federal grand jury returned a second
superseding indictment against Turner and Wilkerson.2 Turner was
charged with one count each of conspiring to commit extortion under
color of official right and of attempted extortion under color of
official right, both in violation of the Hobbs Act, 18 U.S.C.
§ 1951, and with three counts of making false statements in
violation of 18 U.S.C. § 1001. The conspiracy charge was dropped
on motion of the government before the jury was sworn.
The attempted extortion under color of official right
count was based on Turner's course of conduct, particularly his
accepting $1,000 in cash from Wilburn during the August 3, 2007,
afternoon meeting at his Roxbury office and events before and after
that. The three false statement counts were based on Turner's
statements to the FBI agents at the October 28, 2008, interview in
his City Hall office that (1) he had never accepted money from
Wilburn, (2) Wilburn had never offered to hold a fund-raiser for
him, and (3) Wilburn had never offered him money or any other
assistance.
2
On June 3, 2010, Wilkerson pled guilty to eight counts of
attempted extortion under color of official right, and the
government dismissed the remaining conspiracy and theft of honest
services fraud charges against her. The district court sentenced
Wilkerson to forty-two months' imprisonment, to be followed by
three years' supervised release. Her sentence was affirmed on
appeal. United States v. Wilkerson, 675 F.3d 120 (1st Cir. 2012)
(per curiam).
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Turner's jury trial began on October 18, 2010, and lasted
through October 28. The defense argued that Turner's scheduling,
and then cancelling, a city council hearing on the subject of
liquor licenses were not in exchange for any money Wilburn may have
given him but rather were legitimately done by Turner as a public
official. Turner testified that holding hearings was part of his
job and that he was concerned about the fact that none of the sixty
liquor licenses recently provided by the state legislature were
given to establishments in the Empowerment Zone in his district.
The defense sought to discredit Wilburn's testimony and
the video evidence of Wilburn's cash payment to Turner on August 3.
The defense argued that Wilburn could have given Turner something
less than $1,000 and pocketed the rest for himself. Turner
testified that the reason the video shows him not looking down when
Wilburn hands him the money is that it was not uncommon for his
constituents to hand him small contributions and it would have been
"rude" and "disrespectful" if he had examined what Wilburn had
given him. Turner called this a "preacher's handshake."
He also testified that he did not remember the August 3
meeting at all and that if he had received $1,000 from anyone, he
would have remembered it. In contrast with these failures of
memory as to his several meetings and conversations with Wilburn,
Turner had a clear memory of a five-minute conversation he had with
Pokaski in June 2007 on the reasons for the rejection of Wilburn's
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application. Turner testified that neither at the time the FBI
agents interviewed him at his City Hall office on October 28, 2008,
nor at trial did he remember ever meeting Wilburn, Wilburn's
offering to hold a fund-raiser for him, or accepting any money from
him.
On October 29, the jury returned a verdict of guilty on
all four counts.3 On January 25, 2011, the district court
sentenced Turner to three years in prison, to be followed by three
years of supervised release. At sentencing, the district court
found that Turner had committed perjury during his testimony.
Turner timely filed his appeal on February 3, 2011.
III.
The Hobbs Act, 18 U.S.C. § 1951, makes it a crime for
anyone to "obstruct[], delay[], or affect[] commerce or the
movement of any article or commodity in commerce, by robbery or
extortion or attempts or conspires so to do," id. § 1951(a), and it
defines extortion as, among other things, "the obtaining of
3
After his conviction but before his sentencing, the Boston
City Council removed Turner from office. Turner sued the city, the
city council, and city council members in federal district court
under 42 U.S.C. § 1983, alleging that his ouster violated his First
and Fourteenth Amendment rights. The district court certified
questions to the Massachusetts Supreme Judicial Court ("SJC"),
Turner v. City of Boston, 760 F. Supp. 2d 208 (D. Mass. 2011),
which held that the city council lacked the authority under state
law to remove Turner from office before he had been sentenced.
Turner v. City of Boston, 462 Mass. 511 (2012). Turner's § 1983
suit in the district court has not yet been resolved.
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property from another, with his consent, . . . under color of
official right," id. § 1951(b)(2).
Turner challenges his conviction for attempted extortion
under color of official right on two main grounds: instructional
error and insufficiency of the evidence. He argues that the
district court's jury instructions on the reciprocity and
interstate commerce elements constituted plain error, so he is
entitled to a new trial, and that there was insufficient evidence
to satisfy those two elements. His appeal also raises evidentiary,
closing argument, and sentencing issues.
A. Hobbs Act: The Reciprocity Element of Extortion Under
Color of Official Right
Hobbs Act extortion under color of official right
prosecutions fall into two categories: campaign contributions4 and
other payments. Turner does not argue that this is a campaign
contribution case.
Outside of the campaign contribution context, the Supreme
Court set the requirement in Evans v. United States, 504 U.S. 255(1992), that "the Government need only show that a public official
4
The Supreme Court in McCormick v. United States, 500 U.S.
257 (1991), held that a public official's acceptance of payments
that are treated as campaign contributions is a violation of the
Hobbs Act "only if the payments are made in return for an explicit
promise or undertaking by the official to perform or not to perform
an official act." Id. at 273. That is, "a specific quid pro quo
is necessary for conviction under the Hobbs Act when an official
receives a political contribution." United States v. Cruzado-
Laureano, 404 F.3d 470, 482 (1st Cir. 2005).
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has obtained a payment to which he was not entitled, knowing that
the payment was made in return for official acts." Id. at 268.
The Court also held that "the offense is completed at the time when
the public official receives a payment in return for his agreement
to perform specific official acts; fulfillment of the quid pro quo
is not an element of the offense." Id.
The Evans Court did not directly state that proof of at
least an implicit, as opposed to an explicit, quid pro quo or
reciprocity understanding is necessary. However, both Justice
Kennedy in a concurrence and three other justices in a dissent
recognized that the Evans majority's opinion pointed toward such a
requirement. See id. at 272 (Kennedy, J., concurring); id. at 285-
86 (Thomas, J., dissenting). Since Evans, other circuits, using
the language of quid pro quo or variations on that term, have held
that "a quid pro quo [is] required to sustain a conviction in the
non-campaign context, but that the agreement may be implied from
the official's words and actions." United States v. Ganim, 510
F.3d 134, 143 (2d Cir. 2007); see also, e.g., United States v.
Kincaid-Chauncey, 556 F.3d 923, 937 (9th Cir. 2009); United States
v. Antico, 275 F.3d 245, 258 (3d Cir. 2001); United States v.
Giles, 246 F.3d 966, 972-73 (7th Cir. 2001); United States v.
Collins, 78 F.3d 1021, 1035 (6th Cir. 1996); United States v.
Martinez, 14 F.3d 543, 553 (11th Cir. 1994).
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The Supreme Court has not had the occasion to address
this since Evans. The parties and the district court accepted that
implied reciprocity or quid pro quo is a requirement in non-
campaign contribution cases and we too accept that proposition for
purposes of this case, without deciding the issue. The disputes
here are rather about whether the jury instructions adequately
described the reciprocity concept, under the pertinent standard of
appellate review, and about whether the evidence sufficed.
1. Jury Instructions on the Reciprocity Element
The district court instructed the jury that it must find
beyond a reasonable doubt the following:
First, that on or about August 3, 2007,
Mr. Turner knowingly and willfully obtained
cash from Mr. Wilburn;
Second, that Mr. Turner obtained that
cash under color of official right as a public
official;
Third, that Mr. Turner knew that the
cash to which he was not entitled was obtained
in return for official acts . . . .
After discussing knowledge and willfulness, the court
elaborated:
Let me turn to this idea of color of
official right. The statute, which covers a
broad range of activities, much of which is
unrelated to anything that you have to
consider, calls it Extortion Under Color of
Official [R]ight when a public official has
obtained or attempted to obtain a payment to
which he is not entitled knowing that the
payment was offered to him in return for
taking or withholding or influencing official
acts.
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The Government does not need to show
that Mr. Turner made some specific threat or
used force or fear to cause a person to tender
the money that the Indictment alleges he
obtained. The Government does not need to
prove that the defendant made any particular
request or demand for money or engaged in some
affirmative inducement to obtain the money.
Passive acceptance of a benefit by a public
official is sufficient if the official knows
that he is being offered or tendered the
payment in exchange for the exercise of his
official power.
The Government is not required to prove
that the defendant made some specific promise
that he was going to perform some particular
act at the time of the payment. What the
Government must prove is that Mr. Turner
received a payment he was not entitled to
receive with knowledge that the payment was
provided to him in exchange for some official
act. It is not necessary for the Government to
show that that act was actually taken or
actually occurred.
Ultimately, the Government does not
have to prove -- and I tell you what the
Government does not have to prove so you
understand what it is that they do have to
prove. The Government does not have to
establish that the defendant had the ultimate
authority to guaranty or deny or influence
actions such as the issuance of a liquor
license all by himself, or to schedule or
cancel City Council hearings on his own or to
pass City Council resolutions on his own. But
the Government must establish that the
defendant in his official capacity had the
power to facilitate government business, and
it was that power, that power to facilitate,
that he was paid to exercise.
The Government does not have to prove
that the defendant had the specific intent to
take the official action at the time the
payment was made, but the Government must
prove that he intended to accept the payment
fully knowing that it was being tendered to
take such official action. That is what the
-22-
statute means when it talks about Extortion
Under the Color of Official Right.
In his briefs on appeal, Turner's argument was that the
district court's instructions inadequately instructed the jury on
the reciprocity element generally. At oral argument, Turner
reframed his objection to an argument that the instructions could
have been understood by the jury as not requiring a finding that
Turner had impliedly promised to take official actions in return
for the $1,000 Wilburn paid him. Turner argues that the
instructions would have allowed the jury to convict Turner on the
Hobbs Act count even if it found that the $1,000 was a mere
gratuity. Both iterations of the argument were not raised with the
district court. Accordingly, review is for plain error.5 See
United States v. Troy, 618 F.3d 27, 33 (1st Cir. 2010). But since
there was no error at all, the argument fails even if the objection
had been preserved.
The district court's jury instructions track the language
of Evans, which we have repeatedly endorsed. We have repeated the
Evans language that "the Government need only show that a public
official has obtained a payment to which he was not entitled,
5
Turner argues that the issue should be considered properly
preserved under United States v. Sawyer, 85 F.3d 713 (1st Cir.
1996), where we excused the defendant's failure to object to a jury
instruction in part because the defendant did make a number of
other preserved objections to the court's instructions that "were
closely related" to the unpreserved argument he made on appeal.
Id. at 742. The arguments here are not closely related.
-23-
knowing that the payment was made in return for official acts."
United States v. Rivera Rangel, 396 F.3d 476, 484 (1st Cir. 2005)
(quoting Evans, 504 U.S. at 268) (internal quotation marks
omitted). In United States v. Cruz-Arroyo, 461 F.3d 69 (1st Cir.
2006), we said: "To establish guilt for extortion under color of
official right, the prosecution must show only that the defendant,
a public official, has received an emolument that he was not
entitled to receive, with knowledge that the emolument was tendered
in exchange for some official act." Id. at 73.
In keeping with these cases, the district court stated
that the jury must find that "Mr. Turner knew that the cash to
which he was not entitled was obtained in return for official acts"
(emphasis added). Later, the court instructed the jury: "The
statute . . . calls it Extortion Under Color of Official [R]ight
when a public official has obtained or attempted to obtain a
payment to which he is not entitled knowing that the payment was
offered to him in return for taking or withholding or influencing
official acts" (emphasis added). The district court also
instructed: "What the Government must prove is that Mr. Turner
received a payment he was not entitled to receive with knowledge
that the payment was provided to him in exchange for some official
act" (emphasis added). This "in return for" and "in exchange for"
language is directly from Evans and our precedents.
-24-
In this context, "return" is defined as "something given
to repay or reciprocate." Webster's Third New International
Dictionary 1941 (1993). "In return for" thus means "in repayment
or reciprocity for." Similarly, "in exchange" means "as payment."
Id. at 792. So when the court instructed the jury that it must
find that Wilburn offered Turner the $1,000 "in return for taking
or withholding or influencing official acts," the jury understood
that it had to find that the money was offered "in repayment or
reciprocity for" Turner's "taking or withholding or influencing
official acts." This sufficiently conveys the essence of
reciprocity.
Turner's arguments to the contrary ignore the meaning of
both the phrases "in return for" and "in exchange for," which
conveyed the requirement that the jury find that the $1,000 was
given to Turner as payment, which in turn means "something given to
discharge a debt or obligation or to fulfill a promise." Id. at
1659. This is incompatible with the idea of, as Turner puts it in
his brief, "a gratuity, with no strings attached."
Further, the instructions were clear that
[t]he Government does not have to prove that
the defendant had the specific intent to take
the official action at the time the payment
was made, but the Government must prove that
he intended to accept the payment fully
knowing that it was being tendered to him to
take such official action.
-25-
(Emphasis added.) Similarly, the court instructed the jury that
"the Government must establish that the defendant in his official
capacity had the power to facilitate government business, and it
was that power, that power to facilitate, that he was paid to
exercise" (emphasis added). These instructions did not allow the
jury to convict if they found only that the payment was no more
than a "thank you" offered in gratitude for something already done.
Rather, contrary to Turner's argument, the instructions required
the jury to find that Turner knew the payment was tendered "to
take" an official action or "to exercise" an official power; that
is, to do something for Wilburn after he received the payment.
Read as a whole, the instructions adequately conveyed to
the jury the requirement that they find Turner promised to
undertake ongoing action in exchange for the $1,000.
The government's theory was that when Wilburn's payment
of the $1,000 was accepted on August 3 by Turner (and not
returned), it reflected Turner's understanding that he was being
paid for his ongoing support using his city council position for
Wilburn's as yet unsuccessful liquor license application. The
government did not need to prove that Turner did in fact take steps
thereafter to do what he had been paid to do. Even so there was
evidence from which a jury could conclude that Turner did in fact
take those steps. He agreed to cancel the hearing on denial of
licenses in the area of Roxbury although earlier he had said the
-26-
hearings were not just about Wilburn, but also the larger issue of
possible race discrimination. He did so because Wilburn, having
paid Turner for Turner's ongoing services, asked him to do so. The
government, to be clear, did not argue that Turner had solicited
the money.
The defense closing stressed that the government had not
met its burden. Defense counsel stated in his closing: "The crime
of Attempted Extortion Under Color of Official Right is completed
when a public official receives a payment that he was not entitled
to receive with knowledge that the payment was provided in exchange
for some official act." The defense was that Turner was a busy
public servant with a poor memory who did not make the phone call
to Wilburn on August 3, 2007, inviting Wilburn to Turner's Roxbury
office, and was just "trying to do his job." The theory was that
the reason Wilburn gave money to Turner was so he could pocket some
for himself. No theory was ever presented that the jury must
acquit because the $1,000 was merely a "thank you" gesture made for
official actions Turner had already performed. Nevertheless, that
theory has been introduced on appeal, and fails on its merits.
Turner also argues that even if the instructions contain
accurate statements of the law, certain of the court's statements
regarding what the government did not have to prove overshadowed
everything else. Turner's argument here relies on taking portions
of the court's instructions out of context. The district court
-27-
told the jury that it was instructing them on "what the Government
does not have to prove so you understand what it is that they do
have to prove." After each of the statements cited in Turner's
brief in which the court told the jury what the government did not
have to prove, the court followed up immediately with an accurate
statement of the law as to what the government did have to prove.
Read as a whole, as we must do, these instructions properly
conveyed the requirement that the jury find that Turner knew that
the cash he received was given to him in return (or exchange) for
a promise to take official actions on Wilburn's behalf.
Although he did not seek this instruction at trial,
Turner argues on appeal that the district court erred in failing to
give an instruction that he must have at least understood that he
was "expected to exercise some influence on the payor's behalf as
opportunities arose." United States v. Abbey, 560 F.3d 513, 518
(6th Cir. 2009). Some circuits have used this or similar language
to state that the quid pro quo may be implicit rather than
explicit. See, e.g., United States v. Coyne, 4 F.3d 100, 114 (2d
Cir. 1993) ("[W]e have held since Evans that the government does
not have to prove an explicit promise to perform a particular act
made at the time of payment. Rather, it is sufficient if the
public official understands that he or she is expected as a result
of the payment to exercise particular kinds of influence -- i.e.,
on behalf of the payor -- as specific opportunities arise."
-28-
(citation omitted)). Turner's argument fails for a variety of
reasons, including that this information was conveyed in effect.
In fact, the district court gave an instruction
substantively identical to the one Turner now requests when it told
the jury that "[t]he Government is not required to prove that the
defendant made some specific promise that he was going to perform
some particular act at the time of the payment," but that jury had
to find that "Turner received a payment he was not entitled to
receive with knowledge that the payment was provided to him in
exchange for some official act."
In sum, there was no error in the instructions on the
reciprocity element, much less was there plain error. The
instructions adequately explained the law and did not tend to
confuse or mislead the jury on the controlling issues, so they were
not an abuse of discretion. And they were appropriate to the
factual circumstances of the case, contrary to Turner's argument.
2. Sufficiency of the Evidence on the Reciprocity
Element
Turner argues that even if the instructions were
adequate, there was insufficient evidence as to the reciprocity
element to support a conviction. Turner made and renewed a Rule 29
motion, so the challenge to the sufficiency of the evidence is
reviewed de novo, with the proof viewed in the light most favorable
to the guilty verdict. Cruz-Arroyo, 461 F.3d at 73.
-29-
At the August 3 meeting, Wilburn repeatedly said that the
$1,000 payment was an expression of his "gratitude" to Turner. On
appeal, Turner uses these statements to argue that the $1,000 was
merely a gratuity and that there was insufficient evidence that
Turner agreed to perform ongoing official acts for Wilburn. There
is strong evidence to the contrary, and the jury's verdict was
amply supported.
We start with Wilburn and Turner's statements at that
August 3 meeting and their actions after the payment. At the
August 3 meeting, as Wilburn handed Turner the $1,000, he said:
"after the hearing," which was still to take place, "I want to show
my gratitude again" (emphasis added). The jury could have
reasonably understood Wilburn to be telling Turner that the $1,000
of "gratitude" being handed over was in fact an inducement for
Turner to promise to use his office to advance Wilburn's efforts to
obtain a liquor license, and that by accepting the cash Turner
implicitly made that promise. The jury could reasonably have
concluded that Wilburn was telling Turner (and that Turner
understood) that another payment would be forthcoming after Turner
fulfilled his implicit promise to hold the liquor license hearing.
Wilburn also told Turner: "I just want you to know that,
you know, you take care of me, I take care of you." He also said:
"I'll talk to you, uh, before the hearing. . . . And I'll talk to
you after the hearing. . . . And we'll set up and I'll take care of
-30-
you again." Turner's response was: "All right." Turner accepted
the implicit deal for his future official acts; he did not reject
the deal, nor did he reject or return the money. See Evans, 504
U.S. at 274 (Kennedy, J., concurring) ("The official and the payor
need not state the quid pro quo in express terms, for otherwise the
law's effect could be frustrated by knowing winks and nods. The
inducement from the official is criminal if it is express or if it
is implied from his words and actions, so long as he intends it to
be so and the payor so interprets it.").
Turner's actions after this August 3, 2007, meeting
provide further support for the jury's verdict. On August 8, 2007,
Turner made a phone call to Wilburn to assure him that even though
the hearing date set had to be cancelled due to a scheduling
conflict, the hearing would still take place later. And on August
13, 2007, Wilburn called Turner to get the hearing cancelled
because it might interfere with his efforts to obtain a liquor
license by other means. Turner ultimately agreed to cancel the
hearing at Wilburn's request, on the condition that Wilburn would
receive the all-alcohol license he was seeking. This was so
despite the fact that Turner's original purported purpose in
holding the liquor license hearings was to bring to light the fact
that liquor licenses were not being properly apportioned by the
Board to the Empowerment Zone, a problem that would not have been
remedied by a deal providing just Wilburn with a license. But as
-31-
Wilburn testified at trial: "[W]e didn't need a hearing. All we
needed was a liquor license." The jury could have easily inferred
that Turner's continuing to make sure that Wilburn's ultimate goal
of getting an all-alcohol license was realized was evidence that
Turner had implicitly agreed to help him reach that goal when he
took the $1,000 on August 3, 2007.
The jury also had evidence of Turner's concealment of the
crime and consciousness of guilt, which supported its verdict on
the Hobbs Act count. See United States v. Romero-Carrion, 54 F.3d
15, 17 (1st Cir. 1995) (evidence of defendant's consciousness of
guilt supported guilty verdict). The jury heard the testimony of
the two FBI agents who interviewed Turner in his City Hall office
on October 28, 2008. During that interview Turner denied that
Wilburn had ever offered to hold a fund-raiser for him or offered
him any money or paid him any money. Turner even denied ever
having met Wilburn. From having seen and heard the recordings of
Wilburn and Turner's meetings, the jury knew these denials were
false.
Turner told the agents that he eventually concluded there
was no need to hold a hearing on the denial of liquor licenses
because Wilkerson informed him that she was moving forward with the
Home Rule petition to obtain more liquor licenses for Boston. But
he testified at trial that he did not learn about the Home Rule
petition until after he agreed to cancel the hearing at Wilburn's
-32-
request. Similarly, he told the agents that he did not move
forward with the hearing because he had determined that racial bias
did not play a part in the denial of Wilburn's liquor license
application, but at trial he testified that he had decided to go
ahead with the hearing even though he was satisfied that the Board
had rejected Wilburn's application for legitimate reasons.
This evidence not only went to Turner's guilt on the
false statement counts. It was also evidence that Turner knew he
was guilty of the crime of accepting money in exchange for
promising to perform official acts on Wilburn's behalf and was
trying to cover up that guilt by lying to the FBI agents.
Turner's own testimony at trial provided further evidence
of his guilty conscience. He testified that he could not remember
meeting with Wilburn and accepting the $1,000 Wilburn passed to
him, even after hearing the other witnesses' testimony and watching
the video of the transaction. This is in contrast to his clear
recollection of a five-minute phone conversation he had with
Pokaski regarding the reasons why the Board denied Wilburn's liquor
license application.
Turner was asked directly on cross-examination whether
the $1,000 he had received from Wilburn "was an exchange of money
for service, right? That's what happened here?" His answer was:
"I have no way of saying, so I can't answer the question, because
-33-
I don't remember what happened, and the picture doesn't answer that
question for me."
When asked about the roll of fifteen bills constituting
the $1,000 he was handed, he said he did not look down because it
was like a "preacher's handshake," and it would be rude to look
down at the money. And when asked how he knew what was handed to
him was money if he did not look down, Turner then said he did not
know it was money and it would be rude to look down at any gift.
Turner's testimony was so incredible that at sentencing
the district court found "beyond a reasonable doubt" that Turner
had perjured himself.
B. Hobbs Act: The Interstate Commerce Element of Extortion
Under Color of Official Right
There was no error in the district court's instruction on
the jurisdictional element. To meet the jurisdictional requirement
of the Hobbs Act, "the government need show only that the conduct
created a 'realistic probability' of a minimal effect on interstate
commerce." United States v. Brennick, 405 F.3d 96, 100 (1st Cir.
2005) (quoting United States v. Capozzi, 347 F.3d 327, 335 (1st
Cir. 2003)). This minimal effect has been described by our
precedent as "a de minimis effect," Capozzi, 347 F.3d at 335(quoting United States v. Butt, 955 F.2d 77, 80 n.2 (1st Cir.
1992)), and we have upheld an instruction that the jury must find
the activity in question to have had a "minimal, slight or subtle
effect" on interstate commerce, Butt, 955 F.2d at 80 n.2.
-34-
1. Jury Instructions on the Jurisdictional Element
Turner's specific claim of error is that the district
court's instructions suggested that it sufficed for the jury to
find a connection between liquor licenses and interstate commerce
and did not require it to further find that Turner was "interfering
with" liquor licenses.
Turner admittedly did not object at trial to the court's
jury instructions on the interstate commerce element, so the
instructions are reviewed for plain error only. Troy, 618 F.3d at
33. Here, there was no error at all.
The district court correctly instructed the jury that the
interstate commerce element could be satisfied by proof that there
was "the prospect, the realistic prospect, that there [was] going
to be some interference with or alteration in the movement of
product in interstate commerce" and that "[t]he actual potential
effect on interstate commerce can be minimal" or "minor or slight."
The district court also correctly instructed the jury on
the required "nexus" between the defendant's actions and the effect
on interstate commerce. The district court told the jury: "[T]he
government must prove that the natural consequence of the
defendant's conduct, as he understood the circumstances to be,
potentially could have caused an impact on interstate commerce,
however minor or slight" (emphasis added). With this language the
court clearly and correctly instructed the jury that they had to
-35-
find that any effect on interstate commerce was a "consequence of
the defendant's conduct."
Turner takes issue with the court's next statement that
you will consider whether or not the use of
liquor for a liquor license and for a
nightclub or a supper club is something that
could interfere with the interests of the
proposed business . . . . And if you find that
it is, . . . then you may find that this
interstate-nexus element has been met.
Turner argues that this instruction could be read as stating that
the interstate commerce element could be met merely by finding a
connection between liquor licenses and interstate commerce. Not
so. The court's immediately preceding statement, that the jury
must find a connection between the defendant's conduct and
interstate commerce, made it clear that the jury was told that it
had to find both that Turner's conduct affected liquor licenses and
that this effect on liquor licenses affected interstate commerce.
There was no error, let alone plain error.
2. Sufficiency of the Evidence on the Jurisdictional
Element
Ample evidence supports the jury's conclusion that the
interstate commerce element was met, in that Déjà Vu's receipt of
a liquor license would affect interstate commerce. The jury heard
testimony that a liquor license was necessary for the success of
Wilburn's supper club and that the liquor sold there would travel
in interstate commerce.
-36-
Actions affecting the availability to a business of a
liquor license affect interstate commerce. In United States v.
McKenna, 889 F.2d 1168 (1st Cir. 1989), the defendants were
officials in the Somerville city government who drafted and passed
a Home Rule petition setting aside liquor licenses for an area of
the city in which a hotel and bar would be built, in return for
which they received cash from the project's developers. Id. at
1170. The McKenna defendants were also evidently instrumental in
getting the Home Rule petition approved by the Massachusetts
legislature. Id. We stated that
[i]t is all but undeniable that a business
with a liquor license would do business in
interstate commerce. It follows that where
the home rule petition facilitated, albeit
remotely, the availability of a liquor
license, a jury could find that the petition
had a realistic probability of affecting
interstate commerce.
Id. at 1172.
There was also sufficient evidence that Turner's "conduct
created a 'realistic probability' of a minimal effect on interstate
commerce." Brennick, 405 F.3d at 100 (quoting Capozzi, 347 F.3d at
335). There was evidence that after the payment Turner continued
to arrange for a city council hearing on the subject of liquor
licenses going to the Empowerment Zone. Turner's hearing order
specifically mentioned the Crosstown Development in which Wilburn
planned to locate his supper club. Given this evidence and the
discussions between Turner and Wilburn in which Turner clearly
-37-
expressed an intention to help Wilburn obtain a liquor license for
the supper club, the jury could reasonably find beyond a reasonable
doubt that Turner's conduct created a realistic probability of a
minimal effect on interstate commerce.
C. Evidentiary Issues
Turner also argues on appeal that he is entitled to a new
trial based on errors in the admission of evidence. He is not.
We review the district court's decision whether to admit
or exclude evidence for abuse of discretion, United States v.
Phoeun Lang, 672 F.3d 17, 23 (1st Cir. 2012), and an erroneous
admission on a preserved ground is reviewed under the harmless
error doctrine, United States v. Roberson, 459 F.3d 39, 49 (1st
Cir. 2006).
1. Wilburn's Conversation with Agent Robbins
Without objection, Wilburn testified that after Turner
called him on the morning of August 3, 2007 -- the day Wilburn made
the $1,000 payment to Turner -- he told an FBI agent about the
call. He told the FBI agent that he thought the meeting with
Turner might be in connection with a payment Wilburn had made to
Wilkerson the day before and that Turner might, as a result, take
a bribe at the meeting. The FBI agent agreed that Turner might
take a bribe and outfitted Wilburn with listening devices and gave
him $1,000.
-38-
The government relied on this testimony in its closing
for two propositions. First, that it was Wilburn's idea to offer
Turner the money, not the FBI's. And second, that the August 3,
2007, phone call, which was not recorded, actually occurred.
Turner argues that these statements were inadmissible
hearsay and were impermissibly used to persuade the jury that
Wilburn's suspicion that Turner would accept a bribe was true and
that Turner implicitly solicited the payment before the August 3,
2007, meeting took place.
Wilburn's testimony about his conversation with the FBI
agent regarding the phone call was properly admitted; there was no
error, and so no plain error. Wilburn's statement that he thought
Turner might accept a bribe was admissible to explain why the agent
gave Wilburn the $1,000 to pay Turner that day. See United States
v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001) (a statement "offered to
show the effect of the words spoken on the listener (e.g., to
supply a motive for the listener's action)" is not hearsay (quoting
United States v. Murphy, 193 F.3d 1, 5 n.2 (1st Cir. 1999))).
This was relevant: that Turner called Wilburn to invite
him to his office and that Wilburn in turn suggested to the FBI
that Turner might accept a bribe were relevant to rebutting
Turner's claim that the FBI had set him up. Cf. United States v.
Benitez-Avila, 570 F.3d 364, 369 & n.1 (1st Cir. 2009)
(inadmissible evidence of investigators' good faith basis for
-39-
investigating the defendant might have become relevant and
therefore admissible had the defendant attempted to impeach the
government's evidence by suggesting that the agents were motivated
by bias or mistake).
Turner's argument that the government used this testimony
to argue that Turner somehow implicitly solicited the $1,000 before
the August 3 meeting is not true. The government in its closing
explicitly stated that it was not relying on a theory that Turner
had induced or suggested the bribe.
2. Wilburn's Conversation with Turner's Secretary at
City Hall
Wilburn testified, over objection, that while Turner's
secretary was taking Wilburn to meet Turner, the secretary asked
Wilburn whether he had any money and Wilburn said no. After
Wilburn testified that he met with Turner but did not give him the
$600, the government asked why he did not do so. Again over
objection Wilburn testified: "Because I thought that there was some
conversation about him [i.e., Turner] taking money, and he had
talked to her and said if I came in, do not take any money. I
mean, that's how I felt, and that's what I saw." At a later
sidebar Turner re-raised his objection to Wilburn's testimony and
the court ruled that the testimony was "not hearsay, and there was
adequate foundation, and it is for notice in the general rule of
things." The challenge is reviewed for abuse of discretion.
Benitez-Avila, 570 F.3d at 367.
-40-
The secretary's question to Wilburn whether he had any
money was admissible to show why Wilburn did not offer Turner the
$600 that day. See Bailey, 270 F.3d at 87 (testimony offered to
supply motive and not for its truth is not hearsay). There was no
error.
Wilburn's testimony that he "thought that there was some
conversation about [Turner] taking money, and [Turner] had talked
to [Turner's secretary] and said if I came in, do not take any
money" is another matter. This was surmise, even if intelligent
surmise. There was no evidence that such a conversation between
Turner and Turner's secretary took place. Wilburn's testimony
lacked foundation. Fed. R. Evid. 602 (2010) ("A witness may not
testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the
matter.").6
The government cites to no case law but argues that the
statement was admissible because it somehow rebutted a defense that
Wilburn was motivated by his own financial needs. We do not see
the connection, nor would that overcome the fact that this was
sheer speculation.
6
The government argues that Wilburn's testimony had an
adequate foundation because Wilburn knew that he had paid Turner
$1,000 on August 3, so he could testify about why the situation was
different on August 12, when he failed to pay the $600. This
argument does not go to foundation at all.
-41-
In all events, even if the admission of this portion of
Wilburn's testimony was error, it was harmless. "The admission of
improper testimony is harmless if it is highly probable that the
error did not influence the verdict." United States v. Casas, 356
F.3d 104, 121 (1st Cir. 2004).
[A] harmlessness determination demands a
panoramic, case-specific inquiry considering,
among other things, the centrality of the
tainted material, its uniqueness, its
prejudicial impact, the uses to which it was
put during the trial, the relative strengths
of the parties' cases, and any telltales that
furnish clues to the likelihood that the error
affected the factfinder's resolution of a
material issue.
Id. (quoting United States v. Sepulveda, 15 F.3d 1161, 1182 (1st
Cir. 1993)) (internal quotation marks omitted).
Wilburn's speculative testimony did nothing to affect the
properly admitted testimony regarding the central issues in the
case: the $1,000 payment and Turner's ongoing efforts in return to
help Wilburn get his liquor license. It was clear to the jury that
Wilburn was speculating and did not know one way or another. And,
as the defense brought out at trial, there was a perfectly
reasonable basis for the secretary's statement: political
contributions of any amount were not allowed in City Hall.
More than that, the totality of the evidence, especially
the evidence of Turner's lies and his own testimony, strongly
supported the verdict. Because it is highly probable that
-42-
Wilburn's challenged testimony did not influence the verdict, the
error was harmless.
3. Agent Cowley's Testimony About Turner's State of
Mind
On the afternoon of October 28, 2008, after FBI Agent
Cowley and another agent interviewed Turner in his City Hall
office, Turner called Cowley and expressed to her that he was upset
about the interview that morning. On cross-examination, defense
counsel asked Cowley, over objection, about Turner's tone during
the phone call. The following exchange took place:
Defense: And by the nature of his tone, wasn't
it clear that he didn't know anything
about what you were talking about?
Cowley: When I interviewed him?
Defense: When he made the phone call, when he
said, You set me up, what's this
stuff about an affidavit and City
Hall and all this?
Cowley: Oh, no. I think he knew he got
caught, and that's why he was upset,
not because I set him up.
Defense: Excuse me.
COURT: Just a moment. Just a moment. The
question was asked; the answer can be
completed.
Defense: The answer just --
COURT: The answer is responsive to the
question that was asked.
Defense: It only asks for a yes or no.
COURT: I have now ruled on it. Have you
completed your answer?
Cowley: Well, I just want to clarify the
question. I believe the question was
it wasn't from the tone that he
didn't know anything about Ron
Wilburn. No, I don't believe that
was the case at all. I believe the
tone -- he was upset that after he
had read the Complaint Affidavit,
-43-
that he saw that there was videotape
of him, and that's what he was upset
about. That's what I believe he was
upset about, not that he didn't know
anything about Ron Wilburn.
Defense: But that's what you believe.
Cowley: You asked me what I thought. Yes,
that's what I believe.
Defense: No. I asked you about the tone of
his voice.
Turner did not move to strike the testimony and so did
not preserve any objection to an answer he elicited. However,
because the government on appeal has treated Turner as having made
an appropriate objection, we deal with the issue. The government
argues that any error was harmless.
The admission of the statement was harmless because it
was elicited by the defense and, in our view, harmless anyway.
United States v. Rivera-Rivera, 477 F.3d 17, 20 (1st Cir. 2007)
(defendant "cannot persuasively complain about the admission of
this evidence, given that it was the defense -- not the government
-- which elicited it in the course of its cross-examination"); see
also United States v. Lizardo, 445 F.3d 73, 84 (1st Cir. 2006)
(where the defendant elicited challenged testimony on
cross-examination, he could not "contest his own invited error" on
appeal).
D. The Government's Closing Argument
During his closing argument, the prosecutor made this
statement about the meeting between Turner and the FBI agents on
October 28, 2008: "And then the agents decide it's time to ask the
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tough questions. Do you know Ron Wilburn? The magic blank goes
over Chuck Turner's face, and he knows at that moment that the gig
is up, that he's caught." Turner argues that this is factually
inaccurate because Turner only became upset later in the interview,
when he began searching his calendar for any mention of Wilburn.
There was no error here: Turner's premise is wrong. The
prosecutor's argument that Turner knew he was caught was not based
on Turner's change in mood later in the interview, but rather on
Turner's purported memory loss as to his repeated interactions with
Wilburn. The prosecutor was asking the jury to infer that Turner
had a guilty conscience from the fact that he lied to the
investigators. Turner is further incorrect in arguing that the
prosecutor's statement was in any way related to Agent Cowley's
testimony, discussed above, that Turner was upset later that day
because he knew he had been caught: the prosecutor's closing never
referenced that testimony.
E. Sentencing
Turner's last argument is that the government improperly
based its opposition to a downward variance on Turner's exercise of
his First Amendment rights and that by doing so it "poisoned" the
sentencing proceedings.
He bases this argument on the government's sentencing
memorandum, which encouraged the court to consider that Turner's
public conduct after being accused of corruption "affirmatively
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promoted disrespect for the law," "demeaned the seriousness of his
offense," and "eroded the public's trust in law enforcement and the
criminal justice system." The government quoted Turner's
statements to the press and a speech to his constituents. The
memorandum further characterized Turner's public comments as "an
incendiary campaign of misinformation, obfuscation and blame" that
had been "divisive in its intent and in its effect."
Additionally, at the sentencing hearing, the prosecutor
said that Turner had been "railing for many months about how the
Government's case was, quote, infected with racism." The
prosecutor also said that Turner "exacerbated" his crime by, for
example, "going out on the street and accusing the Government,
falsely accusing the Government, of all sorts of improper motives."
The government recommended a sentence within the
guidelines range which was enhanced to thirty-three to forty-one
months when the court found that Turner perjured had himself. The
government made no recommendation as to where within this range the
court should sentence Turner. The court sentenced Turner to
thirty-six months' imprisonment, near the middle of the guidelines
range.
"While we may presume vindictiveness when the Government
changes its legal position after the exercise of a constitutional
right by the defendant, the harshness of this presumption requires
that we do so only when 'a reasonable likelihood of vindictiveness
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exists.'" United States v. Rolfsema, 468 F.3d 75, 79 (1st Cir.
2006) (quoting United States v. Goodwin, 457 U.S. 368, 374 (1982)).
A finding of vindictiveness would require reversal for
resentencing. See United States v. Crocker, 788 F.2d 802, 809 (1st
Cir. 1986).
Turner's challenge to his sentence fails because the
basis for his vindictiveness argument is incorrect.
The government brought up Turner's public statements only
for the purpose of rebutting an argument the government expected
Turner to make that he was entitled to a lower sentence because of
the acceptance of responsibility sentencing guideline or a downward
departure request on the same grounds. See Government's Sentencing
Memorandum at 2-4, United States v. Turner, No. 08-cr-10345 (D.
Mass. Jan. 20, 2011), ECF No. 357. The government's sentencing
memorandum argued that Turner's out-of-court statements that his
prosecution was racially motivated showed that he had not accepted
responsibility, and the memorandum also referred to his perjury.
In addition, the district court explicitly stated that it
had declined to consider Turner's public statements in coming to
its sentencing decision, stating that it was not "likely to attach
any significance one way or the other with respect to the question
of Mr. Turner's assertions about the source of the prosecution
. . . it is not weighing in the balance." The court based its
sentence on Turner's offense conduct and his perjurious testimony
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and sentenced him within the guidelines. In discussing the basis
for its sentence, the court gave a long and thoughtful analysis of
Turner's conduct and the sentencing factors and concluded that a
guidelines sentence of three years was appropriate.
Turner has not shown prosecutorial vindictiveness in the
government's sentencing recommendation. And the court made an
independent sentencing decision based on the guidelines. Given the
facts as found by the jury, the sentence was reasonable.
IV.
We affirm Turner's convictions and his sentence.
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