UNITED STATES OF AMERICA, APPELLEE, v. GARY DEAN ZIMMERMANN, APPELLANT.

From 8th Circuit website:


No. 07-1062
Criminal

In the
UNITED STATES COURT OF APPEALS
For the Eighth Circuit

UNITED STATES OF AMERICA,
APPELLEE,
v.
GARY DEAN ZIMMERMANN,
APPELLANT.

Appeal from the United States District Court for the
District of Minnesota

BRIEF OF APPELLEE

RACHEL K. PAULOSE
United States Attorney
Lisa D. Kirkpatrick
Assistant U.S. Attorney
District of Minnesota
600 United States Courthouse
300 South Fourth Street
Minneapolis, MN 55415
(612) 664-5600
Attorneys for Appellee
i
SUMMARY OF THE CASE
Gary Dean Zimmermann was convicted in the District of
Minnesota of three counts of bribery in violation of Title 18,
United States Code, Section 666(a)(1)(B). Zimmermann appeals
directly from the Judgment of the District Court, which was based
on the jury's verdict finding him guilty.
In this appeal, Zimmermann argues there was insufficient
evidence to support his conviction on three separate grounds.
First, he claims the government failed to prove the jurisdictional
value of the offenses of conviction, as well as failed to prove he
accepted the payments at issue as a quid pro quo for taking
official action. Second, he claims the government failed to prove
he was predisposed to accepting payments in exchange for official
action; therefore, he contends his entrapment defense must prevail.
And lastly, he claims the trial court abused its discretion in
limiting Zimmermann to calling five of his proposed thirteen
witnesses, each of whom would have testified (or did testify) that
Zimmermann never sought a gratuity from him for his work on their
behalf as a councilman. For all these reasons, he asks that this
Court overturn his conviction.
The issues raised by Zimmermann in this appeal are adequately
addressed in the parties' briefs. If oral argument is scheduled,
fifteen minutes per side should be sufficient.
ii
TABLE OF CONTENTS
PAGE
SUMMARY OF THE CASE......................i
TABLE OF CONTENTS...................... ii
TABLE OF AUTHORITIES ....................iii
STATEMENT OF THE ISSUES................... vi
STATEMENT OF THE CASE.....................1
STATEMENT OF THE FACTS ....................3
SUMMARY OF THE ARGUMENT................... 18
ARGUMENT .......................... 20
I. THE EVIDENCE WAS SUFFICIENT TO PERMIT A REASONABLE
JURY TO CONCLUDE BEYOND A REASONABLE DOUBT THAT
ZIMMERMANN ACCEPTED A GRATUITY IN VIOLATION OF
FEDERAL LAW
II. THE EVIDENCE WAS SUFFICIENT TO PERMIT A REASONABLE
JURY TO CONCLUDE BEYOND A REASONABLE DOUBT THAT
ZIMMERMANN WAS NOT ENTRAPPED
......................... 33
III.THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
WHEN IT LIMITED ZIMMERMANN TO CALLING 8 OF HIS 13
PROPOSED WITNESSES TO TESTIFY THAT ZIMMERMANN NEVER
SOUGHT A GRATUITY FROM THEM............ 39
CONCLUSION ......................... 42
CERTIFICATE OF COMPLIANCE.................. 42
iii
TABLE OF AUTHORITIES
PAGE
CASES:
Jacobson v. United States, 503 U.S. 540 (1992) ..... 34, 35
McDonald v. State, 329 So. 2d 583 (1975) .......... 24
Salinas v. United States, 522 U.S. 52 (1997) ...... 22, 25
Scott v. State, 141 N.E. 19 (Ohio 1923)........... 24
Sorrells v. United States, 287 U.S. 435 (1932) ..... 34, 35
United States v. Berg, 178 F.3d 976 (8th Cir. 1999)..... 34
United States v. Bonito, 57 F.3d 167 (2d Cir. 1995)
............................... 29
United States v. Brooks, 215 F.3d 842 (8th Cir. 2000).... 35
United States v. Burks, 934 F.2d 148 (8th Cir. 1991) .... 21
United States v. Cannon, 88 F.3d 1495 (8th Cir. 1996).... 34
United States v. Clark, 45 F.3d 1247 (8th Cir. 1995) .... 32
United States v. Coleman, 284 F.3d 892 (8th Cir. 2002) ... 34
United States v. Eldeeb, 20 F.3d 841 (8th Cir.1994)..... 34
United States v. Foley, 73 F.3d 484 (2d Cir. 1996) ..22, 24-26
United States v. Girard, 601 F.2d 69 (2d Cir. 1979)..... 23
United States v. Griffin, 154 F.3d 762 (8th Cir. 1998) . 29, 30
United States v. Hamilton, 332 F.3d 1144 (8th Cir. 2003) 20, 21,
33
United States v. Ireland, 62 F.3d 227 (8th Cir. 1995).... 20
United States v. Johnson, 463 F.3d 803 (8th Cir. 2006) ... 40
United States v. Kendrick, 423 F.3d 803 (8th Cir. 2005)... 34
iv
United States v. Koessel, 706 F.2d 271 (8th Cir. 1983) ... 39
United States v. Kummer, 15 F.3d 1455 (8th Cir. 1994).... 33
United States v. Long, 952 F.2d 1520 (8th Cir. 1991) .. 21, 36
United States v. Lupino, 301 F.3d 642 (8th Cir. 2002).... 40
United States v. Mariano, 983 F.2d 1150 (1st Cir. 1993)... 30
United States v. Marmolejo, 89 F.3d 1185 (5th Cir. 1996), aff’d,
Salinas, U.S. at 52................. 23, 24, 26
United States v. Mongelli, 794 F. Supp. 529 (S.D.N.Y. 1992).24,
26, 27
United States v. Muldoon, 931 F.2d 282 (4th Cir. 1991) ... 30
United States v. Neal, 990 F.2d 355 (8th Cir. 1993)..... 34
United States v. Nilsen, 967 F.2d 539 (11th Cir. 1992) ... 23
United States v. Picquet, 963 F.2d 54 (5th Cir. 1992).... 23
United States v. Sabri, 326 F.3d 937 (8th Cir. 2003), aff’d, 541
U.S. 600 (2004)..................... 22, 25
United States v. Santopietro, 166 F.3d 88 (2d Cir 1999). 22, 25
United States v. Shaw, 570 F.2d 770 (8th Cir. 1978)..... 33
United States v. Sun-Diamond Growers, 526 U.S. 398 (1999).. 30
United States v. Washington, 318 F.3d 845 (8th Cir. 2003)..20,
33
United States v. Williams, 705 F.2d 603 (2d Cir. 1983) ... 23
v
PAGE
STATUTES:
Title 18, United States Code, Section 1029(a)(2) ...... 23
Title 18, United States Code, Section 201(b)(1)(C) ..... 30
Title 18, United States Code, Section 201(c) ........ 23
Title 18, United States Code, Section 201(g) ........ 24
Title 18, United States Code, Section 641.......... 23
Title 18, United States Code, Section 666........ 23, 29
Title 18, United States Code, Section 666(a)(1)(B) . 21, 29, 30
OTHER AUTHORITIES:
United States Sentencing Guidelines, Section 2C1.1 ..... 30
United States Sentencing Guidelines, Section 2C1.2 ..... 30
vi
STATEMENT OF THE ISSUES
I. THE EVIDENCE WAS SUFFICIENT TO PERMIT A REASONABLE
JURY TO CONCLUDE BEYOND A REASONABLE DOUBT THAT
ZIMMERMANN ACCEPTED A GRATUITY IN VIOLATION OF
FEDERAL LAW
United States v. Sun-Diamond Growers, 526 U.S. 398 (1999)
United States v. Marmolejo, 89 F.3d 1185 (5th Cir. 1996)
United States v. Mongelli, 794 F. Supp. 529 (S.D.N.Y. 1992)
II. THE EVIDENCE WAS SUFFICIENT TO PERMIT A REASONABLE
JURY TO CONCLUDE BEYOND A REASONABLE DOUBT THAT
ZIMMERMANN WAS NOT ENTRAPPED
Jacobson v. United States, 503 U.S. 540 (1992)
III.THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
WHEN IT LIMITED ZIMMERMANN TO CALLING 8 OF HIS 13
PROPOSED WITNESSES TO TESTIFY THAT ZIMMERMANN NEVER
SOUGHT A GRATUITY FROM THEM
United States v. Koessel, 706 F.2d 271 (8th Cir. 1983)
1
STATEMENT OF THE CASE
On January 18, 2006, a federal grand jury sitting in the
District of Minnesota returned a four-count indictment against the
defendant, former Minneapolis City Councilman Gary Dean Zimmermann.
The grand jury alleged in each of the four counts that Zimmermann
violated Title 18, United States Code, Section 666(a)(1)(B), by
knowingly and corruptly soliciting something of value with intent
to be influenced or rewarded in connection with any business,
transaction or series of transactions with the government of the
City of Minneapolis. Counts 1, 2, and 3 pertained to $5,000,
$1,200, and $1,000 cash payments, respectively, that Zimmermann
accepted from a real estate developer, Gary Carlson, in June and
August of 2005. Count 4 pertained to Zimmermann’s request made to
a separate developer in 2004 for the construction, at no charge to
him, of a retaining wall.
On July 31, 2006, Zimmermann proceeded to a jury trial before
the Honorable Ann D. Montgomery, United States District Court Judge
for the District of Minnesota. Zimmermann testified on his own
behalf. In addition, he called sixteen witnesses. Of those sixteen
witnesses, eight offered “constituent service testimony” as to
Zimmermann’s utility in helping them with issues before the City
Council. The trial court excluded as cumulative an additional five
constituent witnesses. After eight days of testimony, a jury
1
Sent. Tr.” refers to the transcript from the Sentencing
Hearing held before the Honorable Ann D. Montgomery on December 19,
2006.
2
returned a verdict on August 10, 2006. The jury convicted
Zimmermann of Counts 1, 2, and 3 and acquitted him of Count 4.
On December 19, 2006, Judge Montgomery sentenced Zimmermann to
the custody of the Bureau of Prisons for thirty months as to each
count of conviction, to be served concurrently. (Sent. Tr.1 at 20;
Judgement at 2.) At sentencing, Zimmermann thanked Judge
Montgomery for giving him a fair trial. (Sent. Tr. at 17.) This
appeal of Zimmermann’s conviction followed.
2
Transcripts of the jury trial are separately numbered by day,
such that each day’s testimony is contained in a single volume.
The following citation format will be used to cite to the jury
trial in this case: citation to the volume (or day of testimony)
will precede citation to the page and will be separated by a colon.
For example, a citation to page 120 of testimony occurring on Day
1 will appear “1:120.”
3
STATEMENT OF THE FACTS
Defendant Gary Dean Zimmermann represented the Sixth Ward of
the City of Minneapolis as a member of the Minneapolis City Council
from 2002 until 2005. As a councilman, he served on the Zoning and
Planning Committee as one of its six members. (2:61; 6:109.)2 In
exchange for his influence with the committee and the City Council,
Zimmermann accepted $7,200.00 cash from real estate developer, Gary
Carlson. Unbeknownst to Zimmermann, however, Carlson was working
at the direction of the Federal Bureau of Investigation (“FBI”) in
furtherance of a public corruption investigation. As a result of
the payments Zimmermann accepted, a jury convicted him on three
counts of bribery in violation of Title 18, United States Code,
Section 666(a)(1)(B).
Carlson was a real estate developer who aspired to transition
from building and selling single-family homes to building larger,
commercial buildings. (2:144, 157.) Together with his wife,
Carlson formed the Chicago Commons Corporation to develop a multi-
million dollar, mixed-use building in south Minneapolis known as
Chicago Commons. (Id. at 144-46.) He envisioned the project as
4
having retail space, such as a coffee shop and a small grocery
store, on the ground floor with residential condominium units
occupying the upper floors. (Id. at 146.) In total, Chicago
Commons was to house eighty-one condominium units, which would sell
for approximately $200,000.00 each. (3:5.) Carlson estimated his
profits from the project at eight million dollars. (GE 18, at A-
21.)
Prior to breaking ground on the project in October of 2004,
Carlson obtained a zoning classification for Chicago Commons that
allowed for two small retail businesses to occupy the building.
(2:150-51.) Classification for only two retail spaces, however,
limited Carlson’s ability to market the project to prospective
buyers as an all-encompassing living environment. (Id. at 152.)
He envisioned the nearby hospitals’ and bank’s employees as his
niche market, and he believed that the ability to offer services on
the main floor, such as dry cleaning and a full-service grocer, was
critical to the project’s success. (Id. at 152, 162) To remedy
the marketing problem that the zoning classification created,
Carlson submitted a rezoning application to the City of
Minneapolis. (Id. at 160.)
In Minneapolis, the first step in acquiring a new zoning
classification is to submit a rezoning application to the City
Planning Department. (Id. at 59.) After receiving an application,
the department assigns a staff member to the application, who
5
writes a report analyzing the appropriateness of the rezoning.
(Id.) The staff member then presents that report to the Planning
Commission, which is comprised of representatives from various city
agencies. (Id. at 59-60.) The Planning Commission makes a
recommendation to the City Council’s Zoning and Planning Committee.
(Id. at 61.) For its part, the Zoning and Planning Committee
consists of six of the City Council’s thirteen members. (Id.) The
Zoning and Planning Committee considers the application and the
Planning Commissions recommendation and makes a recommendation to
the full City Council. (Id. at 62.) At that point, the City
Council takes a final vote on the Zoning and Planning Committee’s
recommendation regarding the rezoning application. (Id.) The City
Council’s decision is final, barring a mayoral veto. (Id.)
In the fall of 2004, Carlson knew that the staff member of the
City Planning Department assigned to consider his rezoning
application intended to recommend that Carlson’s application be
denied. (Id. at 161.) Carlson attributed this denial to an
existing retail mall that was kitty-corner from Chicago Commons,
the Village Market. (Id. at 161-62.) According to Carlson, the
Village Market was a mall that catered to Minneapolis’s Somali
community. (Id. at 163.) It was approved for thirty-eight shops
but, in fact, contained over 146 stores. (Id.)
Carlson believed that the Village Market’s overcrowded
conditions, coupled with poor, heavy-handed management, caused much
6
of the violence and drug trafficking that occurred in the area.
(Id.) Neighborhood organizations opposed Carlson’s rezoning
application, because they believed he was connected with the
Village Market’s owners and that Chicago Commons was nothing more
than an expansion of the Village Market. (Id. at 181.)
Around the same time that Carlson knew the City Planning
Department intended to recommend denial of his rezoning
application, Carlson met Zimmermann at the Minneapolis City Hall.
(Id. at 152-53.) During this first encounter, the two men did no
more than introduce themselves. (Id.) Later, they ran into each
other again but did not have any substantive discussions. (Id. at
153.) However, during their third encounter, Zimmermann solicited
$100,000 from Carlson, purportedly to help pay a legal bill
Zimmermann incurred while unsuccessfully challenging a Minneapolis
redistricting plan. (Id. at 155.) Zimmermann’s solicitation was
in response to Carlson’s benign request as to what he could do to
help Zimmermann’s campaign. (Id.) Carlson responded that $100,000
was a lot of money, and he offered to talk to Zimmermann’s attorney
in order to negotiate a lower fee. (Id.) However, Zimmermann
refused Carlson’s offer but replied that $40,000 would “make him
[the attorney] go away.” (Id.)
Months later, Carlson and Zimmermann unexpectedly ran into
each other again at a conference in Minneapolis. (Id. at 157.)
Carlson was taking a break from the conference and was outside when
3
Transcripts of the recorded conversations played and shown to
the jury in this case will be cited to by the government exhibit
(“GE”) number, as well as to the page number(s) of the
corresponding transcript contained in the Appendix. The
transcripts were published to the jury but not admitted into
evidence. The recordings themselves were admitted into evidence.
However, counsel for the government and for the defendant have
conferred and agreed that the government would file an appendix
containing transcripts of pertinent conversations.
7
Zimmermann approached him and asked him whether he had thought
about their previous discussion concerning money. (Id. at 159.)
Carlson informed Zimmermann that he could help him (Zimmermann),
and Zimmermann stressed that the matter was urgent and that the
money was needed quickly. (Id.)
Three days later, the business day, Carlson contacted the FBI.
(5:49.) Thereafter, Carlson began working as an FBI cooperating
witness and had no further discussions with Zimmermann that were
not recorded and undertaken at the FBI’s direction. (2:160.)
At the direction of the FBI and wearing an electronic
listening device, Carlson met Zimmermann at a restaurant, the Black
Forest Inn, where Zimmermann was celebrating his birthday and
holding a fundraiser on June 6, 2005. (Id. at 168.) During this
recorded conversation, Zimmermann and Carlson talked about
Carlson’s zoning issues, and Carlson made clear that, if Zimmermann
helped push the rezoning application through the City Council,
Carlson would financially reward Zimmermann. (GE 16, at A-5-13.)3
Carlson repeatedly told Zimmermann that he had millions of dollars
riding on the Chicago Commons project (GE 18, at A-34; GE 31, at A-
8
36.) Zimmermann was up front about what he wanted in exchange for
his support:
Carlson: We talked outside the other day. What do
you need? What can I do to help you?
Zimmermann: Money, money, money.
(GE 16, at A-7.) As the recording reveals, there is no break in
conversation between Carlson’s zoning issues, what Carlson needs
from Zimmermann as a councilman, and Zimmermann’s request for
payment from Carlson in exchange for his influence. Further, the
pair cemented their deal and agreed to keep their agreement quiet,
stating:
Carlson: Okay? I'll get you the money next Monday.
I go to Florida this week, so I'll hook up
with you and give you the money Monday.
Zimmermann: Okay.
Carlson: But you be quiet about this to Azzam and
everybody.
Zimmermann: Oh, no, no, I didn't...
Carlson: Okay?
Zimmermann: ...hear a word of it.
Carlson: You got it. Just between you and me.
Zimmermann: Yep.
Carlson: Sure.
Zimmermann: That's the only thing I, I didn't hear a
word.
Carlson: You got it.
Zimmermann: Yeah. As far as...
9
Carlson: Okay. You give me your vote, get me that
vote, and get me my help through there, I'll
take care of you. Okay?
Zimmermann: Okay. You got it.
(Id. at A-8-9) (emphasis added.)
Carlson and Zimmermann concluded their conversation at the
Black Forest Inn with Carlson agreeing to give Zimmermann several
thousand dollars toward Zimmermann’s legal bill, and they agreed to
meet again. (Id. at A-12-14.) As promised, they met again
approximately one week later, this time at the Baja Riverside
restaurant. (2:181-82.) This meeting took place before any money
exchanged hands but after the Planning Commission recommended that
Carlson’s May 30, 2007 rezoning application be denied. (See id. at
178.) Shortly after Zimmermann sat down with Carlson at the
restaurant, Carlson handed Zimmermann an envelope containing $5,000
cash, stating:
Carlson: Before I forget, Dean. Ah. This is for
that attorney thing or whatever we talked
about.
Zimmermann: Yeah.
Carlson: So, use it what you want.
Zimmermann: Okay. Alright.
Carlson: That should help out. Umh. Get him taken
care of. Or whatever you want to do. Just
be careful how you use that, because it's...
Zimmermann: Yeah.
(GE 18, at A-18.)
10
Carlson was wearing a hidden camera during the encounter at
the Baja Riverside restaurant, and the jury viewed the video of the
meeting. The video recording of this meeting (government exhibit
18) shows that, with complete fluidity of motion and without a
break in conversation, Zimmermann accepted the $5,000 from Carlson,
stuffed it deep into his pants pocket, and began talking about
zoning and other official city business.
For the next hour, Carlson and Zimmermann discussed zoning
and, in particular, Carlson’s issues with making Chicago Commons a
financially viable project. Of particular interest, one of the
topics Zimmermann and Carlson discussed concerned Carlson’s course
of action in light of the Planning Commission’s recommendation,
which was made only one day before this meeting, that Carlson’s
rezoning application be denied. As previously noted, Zimmermann
serves on the Zoning and Planning Committee, which considers
Planning Commission recommendations before presenting its own
recommendation to the full City Council. Zimmermann instructed
Carlson to appeal the Commission’s decision, stressing that the
appeal would go before Zimmermann’s committee:
Zimmermann: ...here's how we approach. I mean, you're
going to have to appeal it. Right.
Carlson: Okay.
Zimmermann: And then that'll come to the, to our
committee, Zoning and, and Planning
Committee, for the appeal.
(Id. at A-25.)
11
Further, Zimmermann brain-stormed about other ways to deal
with the zoning problem, especially the omnipresent issue of the
neighborhood’s distrust concerning expansion of the Village Market.
For the first time, Zimmermann broached the subject of finding a
new home for the Village Market’s vendors. As he saw it, moving
the Village Market out of the neighborhood would relieve the
pressures from overcrowding and its attendant problems that the
Chicago Commons area faced. (Id. at A-36.) Zimmermann expected
that relieving this pressure would alleviate the neighborhood’s
concerns about Carlson’s project. (Id.)
The only other main topic of discussion during that hour-long
conversation at the Baja Riverside restaurant centered on ways
Carlson could provide financial support to Zimmermann and his
campaign in spite of the $300/person campaign contribution limit.
(GE 18, at Tab 3.) They discussed:
Carlson: You had mentioned last time about cousins.
Zimmermann: Mm-hm.
Carlson: About a number of cou--...
Zimmermann: Well, the problem...
Carlson: How do I do that? You got a limit of three
hundred bucks or something. You can't get
elected on three hundred bucks.
Zimmermann: Mm-hm.
Carlson: Not in a poor community.
Zimmermann: Cousins. Yeah, we like cousins.
12
Carlson: You like cousins? How do I do it? Do I...
Zimmermann: You just go to your cousin, whoever, your
brother, whoever, and...
Carlson: The phone book, whoever, and get... Do you
need the names?
Zimmermann: ...just give them three hundred dollars and
say, "Write a check to Zimmermann for
Council."
Carlson: Got it. Okay.
Zimmermann: Just give them three hundred cash. Nobody
knows, nobody cares.
Carlson: Got it.
Zimmermann: Give them...
Carlson: I can do that.
Zimmermann: ...three-fifty and have them write a check
for three hundred. I don't know.
Carlson: Got it.
Zimmermann: Just do whatever...
(Id. at A-49-50.)
In the midst of their conversation, Carlson clarified the deal
the two had arranged. He stated, “You help me with this, I'll take
care of that for you.” (Id. at A-33.) Zimmerman replied, “Right.
It's, uh, and, uh, I mean that, that's pretty minimal amount of
money for somebody . . . .” (Id.) Carlson was neither shy nor coy
about what he was willing to offer Zimmermann (that is, money) and
what he expected in exchange (that is, Zimmermann’s support on the
City Council).
13
On July 14, 2005, the City Zoning and Planning Committee met
and voted to deny Carlson’s appeal. (7:3.) Zimmermann arrived to
the committee meeting after the vote occurred. (Id.) On July 23,
2005, the City Council met and voted to deny Carlson’s rezoning
classification request. (Id. at 4-5.) The vote was unanimous,
including Zimmermann’s vote to deny the request. (Id. at 5.)
Zimmermann and Carlson did not meet face-to-face again until August
3, 2005 at the Chicago Commons project site. (3:25.) By this
point in time, they began to focus on “Plan B,” that is, finding a
new retail space for the Village Market’s tenants. During their
August 3rd meeting, however, Carlson questioned what Zimmermann had
done for him in exchange for the $5,000 payment on June 14th.
Before Zimmermann explained the steps he allegedly took and the
people to whom he spoke about the project, the following
conversation took place:
Carlson: One thing. Can I...? Can I ask something?
You know, we, we did the five grand, and
then it went b--, we couldn't get, and I
know you tried, Dean, I know you did,
because you couldn't get support. But what
happened?
Zimmermann: Well, mostly it's a reaction to that mall
over there. They don't want more retail in
here because there is already so much that
everything is jammed up, and so, uhm,
they're just really trying to figure out
something that isn't going to be high
traffic.
(GE 31, at A-85.)
4
Campaign finance rules limit contributions to $300 per person
during an election year. (4:74.) Zimmermann’s campaign treasurer,
Gerald Dastych, testified that he kept a record of the names of all
contributors to Zimmermann’s campaign, as well as of their total
contributions, their addresses and their employers. (Id.) If a
campaign contribution envelope was not complete, Mr. Dastych
testified that he would routinely investigate the matter to ensure
the donation’s legitimacy. (Id. at 80-81.)
14
Giving the impression that he could advocate and exert
influence on behalf of Carlson’s interests despite the adverse
voting outcome, Zimmermann handed Carlson three campaign
contribution envelopes at the conclusion of this meeting. (3:31-
32.)
On August 15, 2005, the two men met again. This time,
Zimmermann accepted $1200 cash, which was contained in four
campaign contribution envelopes with names of people Carlson
expressly told Zimmermann were not the true donors.4 Carlson said,
“but if you call them, I gave them a little extra, they'll verify
that they gave it. They didn't, but they're my relatives. Right?”
(GE 15, at 33.) Zimmermann replied, “Got it.” (Id.)
As in previous discussions where money was either discussed or
changed hands, official city business preceded and followed this
exchange of money. Immediately after Zimmermann accepted the $1200
from Carlson, Zimmermann began talking about getting zoning
approval to construct a new retail mall that catered to the Somali
community in an old warehouse that was located in Zimmermann’s
district. (Id.) Again, the intent of the new mall was to
15
alleviate the problems created by the Village Market, which
Zimmermann and Carlson both viewed as the main impediment to the
City Council’s approval of Carlson’s rezoning application.
With a new plan of action in place, Carlson led Zimmermann to
believe that Carlson was building support for the new retail mall.
On August 31, 2005, Carlson went to Zimmermann’s home and delivered
$1000 cash in a single envelope. (3:45.) The envelope did not
have a name on it, as required by campaign finance rules, and
Carlson instructed Zimmermann to complete the name portion of the
envelope himself. (GE 40, at A-125.) In addition, Carlson
expressly told Zimmermann what his motivation was in giving
Zimmermann the $1,000 gratuity: “That's for getting us the zoning
over there.” (Id.) Zimmermann did not object to this
characterization. Instead, he simply stated, “So...alright.”
(Id.)
On September 8, 2005, Zimmermann went to Chicago Commons
believing he was meeting an important member of Minneapolis’s
Somali community who would have influence with regard to the
proposed mall. (3:47.) Instead, two FBI special agents met
Zimmermann inside the office and questioned him about his dealings
with Carlson. (GE 55, at Tab 7.) Time and time again, Zimmermann
lied and denied receiving any money from Carlson until after he had
been shown the videotapes of him accepting money.
16
At the outset, agents began the interview playing the audio
tape of the June 6, 2005 meeting between Zimmermann and Carlson at
the Black Forest Inn. During this encounter, as outlined in
greater detail above, Zimmermann and Carlson discussed Zimmermann’s
legal bill and Zimmermann’s need for “money, money, money.” When
confronted with this recorded conversation, Zimmermann denied that
Carlson ever gave him money but instead insisted that he directed
Carlson to send any contributions directly to the attorney. (Id.
at A-164.) He also stated that, although he directed Carlson to
send money directly to the attorney, Carlson never followed through
on his inquiry. (Id. at A-174-175.) Later in the interview,
agents showed Zimmermann the video of Zimmermann accepting cash
from Carlson on June 14, 2005. (Id. at A-172.) Only then did he
admit to receiving the money. He falsely stated, however, that the
money was in a desk drawer at his home and that he was in the
process of forwarding it to his attorney.
Before showing Zimmermann the video of him accepting $5000
from Carlson, agents cautioned Zimmermann against lying.
Thereafter, Zimmermann admitted to receiving $1200 from Carlson.
(Id. at A-165.) He claimed, however, that this was the sum total
he ever received from Carlson and that he did not make use of the
money because he was suspicious about the money’s origins given the
suspect names on the contribution envelopes. (Id. at A-166, A-174-
177.)
17
As noted above, eventually, Zimmermann had to concede he had
received more than $1200 from Carlson because he was captured doing
so on video. It is noteworthy, however, that he refused to admit
to receiving cash from Carlson until after agents showed him
videotapes of the transactions at issue.
After admitting to accepting the $5000 from Carlson in
addition to the $1200 he earlier admitted to, Zimmermann stated
that he never accepted any other payments from Carlson. (Id. at A-
186.) Again, this was false. Zimmermann eventually admitted to
receiving $1000 from Carlson and stated that, like the other
monies, it was still in tact and in Zimmerman’s desk drawer at
home. (Id. at A-193.)
A search warrant uncovered much of Zimmermann’s deception.
FBI agents executed a search warrant on Zimmermann’s home shortly
after the interview concluded. (5:36.) Although Zimmermann had
claimed, at one point or another in the interview, that all $7,200
he received from Carlson was in a desk drawer in his home, the only
cash in that drawer was the $1,200 he accepted from Carlson on
August 15, 2005. (Id. at 36-37.) The envelopes in which the
$1,200 was contained were admitted into evidence, and Zimmermann’s
campaign treasurer testified that neither the envelopes nor the
fact of the contributions was disclosed to him. (4:80.) Instead,
Zimmermann accepted the $7,200 from Carlson as a gratuity for
taking official action in front of the Minneapolis City Council.
18
SUMMARY OF THE ARGUMENT
Viewing the evidence and all reasonable inferences that can be
drawn therefrom in the light most favorable to the guilty verdict,
there was more than sufficient evidence for a reasonable jury to
conclude beyond a reasonable doubt that Zimmermann accepted
gratuities in violation of federal law. Further, the $5,000
jurisdictional floor was easily met in that this case centered on
payments made in exchange for Zimmermann’s support and influence in
obtaining zoning for the construction of a multi-million dollar
residential and commercial building project.
Moreover, the evidence proved Zimmermann was predisposed to
illegally accepting gratuities prior to any contact by law
enforcement. Zimmermann solicited money from real estate developer
Carlson for his help before Carlson began his assistance to the
government. Indeed, it was in response to Zimmermann’s improper
solicitation that Carlson went to the FBI to report the episode.
Furthermore, even after Carlson began acting at the behest of
government agents, it was Zimmermann who asked for money. (GE 16,
at A-7.)
In addition, the evidence demonstrated that Zimmermann sought
a similar gratuity from a separate individual over a year before
Carlson encountered Zimmermann. Zimmermann also evinced his
predisposition to accepting illegal gratuities by instructing
Carlson to evade campaign contribution limits by donating using
19
false names. What is more, he failed to turn over the
contributions to his campaign treasurer and used them to pay for
personal expenses. Zimmermann also revealed his culpability by
repeatedly lying to FBI agents about receiving payments and about
the disposition of those payments.
Lastly, the trial court did not abuse its discretion in
limiting Zimmermann to calling eight of thirteen proposed
witnesses, all of whom testified (or would have testified) that
Zimmermann acted favorably on their behalf in his capacity as a
public official and did not ask for anything in return.
20
ARGUMENT
I. THE EVIDENCE WAS SUFFICIENT TO PERMIT A REASONABLE JURY TO
CONCLUDE BEYOND A REASONABLE DOUBT THAT ZIMMERMANN ACCEPTED A
GRATUITY IN VIOLATION OF FEDERAL LAW
A. Standard of Review
Zimmermann asks this Court to overturn his convictions as to
each count on the ground that there was insufficient evidence to
prove, one, that the $5,000 jurisdictional floor was met in this
case and, two, that Zimmermann accepted payments from Carlson in
return for official action. Contrary to Zimmermann’s arguments,
there was more than sufficient evidence to support the jury’s
findings. Indeed, there were video and audio recordings of
Zimmermann’s malfeasance. Accordingly, his claim must be rejected.
The standard of review applied to sufficiency-of-the-evidence
claims is well-established. This Court “‘view[s] the evidence in
the light most favorable to the government, resolving conflicts in
the government’s favor, and accepting all reasonable inferences
that support the verdict.’” United States v. Hamilton, 332 F.3d
1144, 1148 (8th Cir. 2003) (quoting United States v. Washington,
318 F.3d 845, 852 (8th Cir. 2003)). Courts may neither reweigh the
evidence nor assess the credibility of the witnesses, as these
tasks belong exclusively to the jury. United States v. Ireland, 62
F.3d 227, 230 (8th Cir. 1995). Furthermore, reviewing courts must
consider all evidence presented at trial, even evidence relating to
21
counts on which the jury did not convict. United States v. Long,
952 F.2d 1520, 1525 (8th Cir. 1991).
This is a strict standard of review. Hamilton, 332 F.3d at
1149. “[T]he verdict of the jury should not be overturned
lightly.” United States v. Burks, 934 F.2d 148, 151 (8th Cir.
1991). This Court will uphold the verdict “if there is any
interpretation of the evidence that could lead a reasonable-minded
jury to find the defendant guilty beyond a reasonable doubt.”
Hamilton, 332 F.3d at 1149.
B. The Jurisdictional Value
Zimmermann was convicted of violating Title 18, United States
Code, Section 666(a)(1)(B). That statute provides, in pertinent
part:
(a) Whoever, if the circumstance described in subsection
(b) of this section exists--
(1) being an agent of an organization, or of a State,
local, or Indian tribal government, or any agency
thereof--
. . . .
(B) 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 any thing of value of $5,000 or more .
. . .
18 U.S.C. § 666(a)(1)(B).
Zimmermann’s first claim in this appeal is that the $5,000
jurisdictional floor contained in subpart (B) of the statute was
not proved beyond a reasonable doubt, because the government did
22
not prove the City of Minneapolis expended $5,000 in considering
Carlson’s rezoning request. (Defendant’s Br. at 24-25.) For this
proposition, Zimmermann relies on a Second Circuit case, United
States v. Foley, 73 F.3d 484 (2d Cir. 1996). He fails to
acknowledge, however, that the Foley opinion was abrogated by the
Supreme Court opinion in Salinas v. United States, 522 U.S. 52
(1997) which abrogation has been expressly recognized by both the
Second and Eighth Circuits. See United States v. Sabri, 326 F.3d
937 (8th Cir. 2003), aff’d, 541 U.S. 600 (2004); United States v.
Santopietro, 166 F.3d 88 (2d Cir 1999).
In Foley, real estate developers Taft-Crosspointe Limited
Partnership sought a $12.5 million loan from Fleet Bank to develop
a shopping plaza. 73 F.3d at 486. However, Fleet Bank was unable
to process the loan, because of a state law that required Fleet
Bank to divest itself of certain holdings. Id. In response, the
Taft-Crosspointe partners contacted Foley, a member of the state
legislature. Id. In exchange for being hired as a consultant with
Taft-Crosspointe, Foley delivered the necessary votes to exempt
Fleet Bank from the state law. Id. As promised, Taft-Crosspointe
hired Foley as a consultant, and, at the time the bribery was
discovered, Foley had received $25,000 from Taft-Crosspoint. Id.
On appeal from a conviction under Section 666(a)(1)(B), Foley
challenged the sufficiency of the evidence as it related to the
$5000 jurisdictional value set forth in the statute. The Foley
23
Court overturned Foley’s conviction, because there was no evidence
that the legislation that Foley pushed through had a $5,000 value
to the State of Connecticut. Id. at 493 (emphasis added).
The same year, the Fifth Circuit applied a very different
analysis to the $5,000 requirement in United States v. Marmolejo,
89 F.3d 1185 (5th Cir. 1996), aff’d, Salinas, U.S. at 52. In
Marmolejo, a prisoner paid a sheriff and a deputy $6,000 per month
plus $1,000 to permit conjugal visits. Id. at 1191. The
defendants argued that intangible services, namely, permitting the
conjugal visits, did not fall within the ambit of § 666's
prohibited conduct, because they were not a “thing of value.” Id.
The Fifth Circuit disagreed.
In deciding that intangibles were a thing of value for
purposes of determining the jurisdictional amount, the Fifth
Circuit relied on case law throughout federal and state courts:
(“We also note that other courts have interpreted the
term ‘anything of value’ in criminal statutes broadly to
include intangibles.”) (citing United States v. Nilsen,
967 F.2d 539, 542 (11th Cir. 1992) (stating that
"Congress' frequent use of 'thing of value' in various
criminal statutes has evolved the phrase into a term of
art which the courts generally construe to envelope both
tangibles and intangibles”); United States v. Picquet,
963 F.2d 54, 55 (5th Cir. 1992) (holding that the term
"anything of value” in 18 U.S.C. § 1029(a)(2) should be
interpreted broadly); United States v. Girard, 601 F.2d
69, 71 (2d Cir. 1979) (holding that term "thing of
value,” when used in criminal statutes, such as in 18
U.S.C. § 641, includes intangibles, such as amusement,
sexual intercourse, a promise to reinstate an employee,
and information); see also United States v. Williams, 705
F.2d 603, 622-23 (2d Cir. 1983) (holding that term
“anything of value” in 18 U.S.C. § 201(c) and 18 U.S.C.
24
§ 201(g) can apply to stock that, although it had no
actual value, the defendant expected it to have value);
McDonald v. State, 329 So. 2d 583, 587-88 (1975) (holding
that sexual intercourse or the promise of sexual
intercourse is a "thing of value” under state bribery
statute); Scott v. State, 141 N.E. 19, 22-23 (Ohio 1923)
(same)).

Id. at 1192. Thus, the Fifth Circuit held that because the
conjugal visits had value of $5,000 or more to the prisoner who
made payment, the payments to the sheriff and deputy to allow the
visits were within the bribery statute. Id. at 1194.
Contrary to Foley, the Fifth Circuit held that the statute did
not require the government to show the value of the bribe to the
governmental entity. Id. n.10. Instead, noting that “[t]he
statute does not specifically require that the payor or the payee
of the bribe value the transaction at $5,000,” the Fifth Circuit
opined that courts should look to “traditional valuation methods.”
Id. at 1194 (citing United States v. Mongelli, 794 F. Supp. 529
(S.D.N.Y. 1992) (outlining traditional valuation methods in context
of § 666 prosecution where $5,000 jurisdictional value was at issue
when defendant accepted bribes in exchange for issuing dumping
licenses)). In Marmolejo, one such traditional valuation method
was simply to look at the amount of payment made, because that is
what the payor was willing to pay. Id.
The Supreme Court affirmed the Fifth Circuit’s ruling,
rejecting the defendant’s argument that “the Government must prove
the bribe in some way affected federal funds, for instance by
5
Similarly, the Eighth Circuit recognized Foley’s abrogation
in United States v. Sabri, 326 F.3d 937, 941 (8th Cir. 2003),
aff’d, 541 U.S. 600 (2004).
25
diverting or misappropriating them” before the statute can be
violated. Salinas v. United States, 522 U.S. 52, 55 (1997). The
Supreme Court, however, did not address the question of valuation.
Id. (“Nor do we review the Court of Appeals' determination that the
transactions at issue ‘involv[ed] any thing of value of $5,000 or
more,’ since Salinas does not offer any cognizable challenge to
that aspect of the Court of Appeals' decision. We simply decide
that, as a matter of statutory construction, § 666(a)(1)(B) does
not require the Government to prove the bribe in question had any
particular influence on federal funds . . . .”).
After Salinas, the Second Circuit expressly recognized that
Foley’s holding had been abrogated. United States v. Santopietro,
166 F.3d 88 (2d Cir 1999).5 The question of valuation remained
open, and the court in Santopietro succinctly framed the issue
before the court:
The precise issue is whether the $5,000 or more required
to be involved in the transaction must be worth at least
that amount to a recipient of federal funds, as Foley
held, see 73 F.3d at 492-93, or whether, in light of
Salinas, it is sufficient if the transaction is worth
$5,000 or more to any person or entity . . . .
Id. at 90.
Recognizing the Supreme Court’s decision in Salinas had
“somewhat eroded Foley,” the court plainly stated: “[T]o the extent
26
that Foley required the Government to plead and prove that the
transaction involved something of value to the governmental entity
that received the requisite amount of federal funds, that narrowing
construction of the statute must also be discarded.” Id. at 92-93.
Thus, Foley is no longer good law on the point for which Zimmermann
cites it, and this Court should reject his attempt to revive it.
Instead, this Court should look to traditional valuation
methods, which were cited with approval by the Fifth Circuit in
Marmolejo. Namely, this Court should look to the following
methods:
(a) The amount of the bribe offered may be an indication
of the market value of the advantage to be purchased, in
the same way that an appraiser would look to prices
actually offered for an asset in determining its value;
(b) The dollar amount of gross business or profit
obtainable by one having licenses similar to those sought
to be obtained by the bribe offered may establish the
jurisdictional amount;
(c) Evidence may establish the actual value of the
licenses to the defendants (or in the market if they were
sold).
United States v. Mongelli, 794 F. Supp. 529, 531 (S.D.N.Y. 1992)
(cited with approval by Marmolejo, 89 F.3d at 1194).
Approval of a rezoning request and finding a new home for the
Village Market’s tenants are services that cannot be valued by
simply looking to the dollars expended by the City of Minneapolis
researching Carlson’s rezoning application. Such an interpretation
of the statute is not only contrary to common sense but would
6
Even if one were to simply value the service by looking to
the amount paid by Carlson, which the Court should not do, the
payment relating to Count 1 clearly suffices.
27
plainly undermine congressional intent, essentially immunizing
bribery from prosecution in the context of the vast majority of
governmental business. Instead, this Court should look to how
Carlson valued Zimmermann’s efforts to further his commercial
building development.6
Carlson repeatedly told Zimmermann that he had millions of
dollars riding on the Chicago Commons project (GE 18, at A-34; GE
31, at A-36.) He also told Zimmermann that he expected to realize
eight million dollars profit from the development. (GE 18, at A-
21.) Because Carlson’s ability to market and sell the condominium
units at Chicago Commons was, as Carlson saw it, dependent upon
rezoning and, thereafter, the relocation of the Village Market
tenants, determining the jurisdictional value based on the value of
Chicago Commons project is appropriate and seamlessly into the
second category of valuation alternatives outlined by the Mongelli
Court.
There is no dispute that the value of the Chicago Commons
project was well in excess of the $5,000 jurisdictional floor,
given that there were eighty-one condominium units that were to be
sold at approximately $200,000 each. (3:5.) Further, Carlson
repeatedly told Zimmermann that he had millions of dollars invested
28
in the project, and he stood to profit eight million dollars upon
its success. (E.g., GE 18, at A-21.)
In addition to Count 1, looking to the value of the Chicago
Commons project is appropriate as to Counts 2 and 3, as well,
because Carlson and Zimmermann evidently believed that finding and
developing a new retail mall that catered to the Village Market
tenants was critical to the success of Chicago Commons after
Carlson’s rezoning efforts failed. (6:179) (Zimmermann admits
suggesting Village Market relocate to help Carlson’s business). In
Carlson’s words, the overcrowded environment, which resulted in
increased crime and violence, made the area “threatening.” (3:70.)
Even according to Zimmermann, it was “pretty clear to even the most
casual observer that the Village Market is bursting at the seams.”
(6:179.) Carlson believed that he could not sell condominium units
with the Village Market across the street from his project.
(3:70.) Because the profit obtainable by way of rezoning or,
alternatively, relocating the Village Market was plainly in excess
of $5,000, Zimmermann’s first sufficiency-of-the-evidence argument
fails.
C. Proof of Intent
Zimmermann next argues that there is insufficient proof that
a quid pro quo was intended when he accepted Carlson’s payments,
because Zimmermann supported Carlson’s rezoning application before
the $5,000 payment and supported the idea behind creating a new
29
mall catering to the Somali community before the $1,200 and $1,000
payments. In essence, Zimmermann contends that he cannot be guilty
of accepting payments for undertaking ministerial tasks that he
would have undertaken irrespective of the gratuities. (Defendant’s
Br. at 28..) This claim is incorrect as a matter of both fact and
law. Indeed, were Zimmermann’s arguments correct, a public
official would always be able to accept things of value as a reward
for official acts that he or she would have undertaken anyway.
This is simply not the law.
Section 666 prohibits both the quid pro quo ilk of bribes that
Zimmermann argues the government failed to prove and the acceptance
of gratuities intended to be a bonus for taking official action.
See, e.g., United States v. Griffin, 154 F.3d 762, 763 (8th Cir.
1998) (recognizing distinction between gratuity and bribery in
context of prosecution under § 666 for accepting a gratuity);
United States v. Bonito, 57 F.3d 167, 171 (2d Cir. 1995) (§ 666
applies to prosecutions for both bribery and gratuities). Because
Zimmermann was convicted of accepting gratuities in violation of
Title 18, Section 666(a)(1)(B), the government was not required to
prove that a quid pro quo was intended. See id. Indeed, the
statute criminalizes those who “corruptly solicit[] or demand[] for
the benefit of any person, or accept[] or agree[] to accept,
anything of value from any person, intending to be influenced or
7
The statutory index to the Sentencing Guidelines provides
that both provisions 2C1.1 and 2C1.2 are potentially applicable to
convictions under 18 U.S.C. § 666(a)(1)(B).
30
rewarded in connection with any business, transaction, or series of
transactions . . .” 18 U.S.C. § 666(a)(1)(B) (emphasis added).
Indeed, Zimmermann was sentenced for having accepted a
gratuity, not a bribe. (See J&C; PSR.) The United States
Sentencing Guidelines provide for two separate base offense levels
applicable to violations of 18 U.S.C. § 666(a)(1)(B), depending
upon whether a defendant is convicted of taking a bribe versus
taking a gratuity.7 Compare U.S.S.G. § 2C1.1 (bribes), with id. §
2C1.2 (gratuities). Conviction for taking a gratuity results in a
lower base offense level than for taking a bribe. Id. “The
distinction between a bribe and an illegal gratuity is the corrupt
intent of the person giving the bribe to receive a quid pro quo,
something that the recipient would not otherwise have done.”
Griffin, 154 F.3d at 763 (section 666 prosecution) (citing United
States v. Mariano, 983 F.2d 1150, 1159 (1st Cir. 1993); United
States v. Muldoon, 931 F.2d 282, 287 (4th Cir. 1991)). Zimmermann
was sentenced under the gratuity Guidelines provision, which was
appropriate under the facts and circumstances of the case. (PSR;
Judgment, at 1.)
In the context of the general bribery statute, 18 U.S.C. §
201(b)(1)(C), the Supreme Court in United States v. Sun-Diamond
31
Growers, 526 U.S. 398 (1999), explained the distinction between
bribery and gratuities:
The distinguishing feature of each crime is its intent
element. Bribery requires intent “to influence” an
official act or “to be influenced” in an official act,
while illegal gratuity requires only that the gratuity be
given or accepted “for or because of” an official act.
In other words, for bribery there must be a quid pro
quo-a specific intent to give or receive something of
value in exchange for an official act. An illegal
gratuity, on the other hand, may constitute merely a
reward for some future act that the public official will
take (and may already have determined to take), or for a
past act that he has already taken.
Id. at 404-05.
Here, there was more than sufficient evidence from which a
jury could find that Zimmermann accepted Carlson’s payments as
rewards for official acts. As to Count 1, Carlson told Zimmermann
that the $5,000 payment was to be used however Zimmermann saw fit.
(GE 18, at A-18.) While there was talk of Zimmermann’s legal bill,
Carlson did not attach any strings to the payment and, in fact,
Zimmermann used the money to pay for personal expenses. More
telling, however, is the context in which the payment was made.
Carlson handed the money to Zimmermann in the midst of an hour-long
conversation about official city business. Later, on August 3,
2005, Carlson again explicitly connected the $5,000 payment to
Zimmermann’s work on behalf of Carlson’s interests, and Zimmermann
did not object to Carlson’s characterization of events. (GE 31, at
A-85.) Instead, he acknowledged receipt of the money and discussed
32
what steps he took to try to get Carlson’s rezoning request
approved. (Id.)
As to Count 2, Zimmermann accepted $1,200 cash from Carlson in
the context of a meeting concerning zoning and the Village Market.
As to Count 3, which was a $1,000 payment Zimmermann accepted from
Carlson at Zimmermann’s home on August 31, 2005, Carlson explicitly
linked the payment to Zimmermann’s actions: “That's for getting us
the zoning over there. Okay?” (GE 40, at A-125.) Zimmermann
responded, “Alright.” (Id.)
Further, when FBI agents confronted Zimmermann about the
payments, he lied. He denied receiving them, then denied having
spent them. In fact, Zimmermann had spent a vast majority of the
money on personal expenses and did not report the money to his
campaign treasurer. His false statements show consciousness of
guilt, see United States v. Clark, 45 F.3d 1247, 1251 (8th Cir.
1995), and his failure to disclose the payments shows that they
were never understood by Zimmermann to be ordinary campaign
contributions or otherwise lawful payments. Thus, viewing the
evidence in the light most favorable to the government, as this
Court must, the cash payments Zimmermann accepted from Carlson –
that is, the $5,000 gratuity (Count 1), the $1,200 gratuity (Count
2), and the $1,000 gratuity (Count 3) – were clearly intended to
be, and were understood by Zimmermann to be, gratuities for
Zimmerman’s official acts as a City Councilman. It is irrelevant
8
Although somewhat besides the point, Zimmermann’s claim that
he would have supported Carlson’s project and rezoning application
irrespective of any payment is contradicted by Zimmermann’s own
actions. If Zimmermann had truly favored Carlson’s rezoning
proposal for its merit, Zimmermann would have voted for it.
Instead, when presented with the opportunity on July 23, 2005,
Zimmermann voted to deny Carlson’s request. (7:5.)
33
that Zimmermann would have supported Carlson’s agenda irrespective
of the corrupt gratuities.8
Zimmermann’s convictions should be affirmed.
II. THE EVIDENCE WAS SUFFICIENT TO PERMIT A REASONABLE JURY TO
CONCLUDE BEYOND A REASONABLE DOUBT THAT ZIMMERMANN WAS NOT
ENTRAPPED
Zimmermann next challenges the sufficiency of the evidence
supporting the jury’s rejection of his entrapment defense. Because
this is a sufficiency-of-the-evidence claim, this Court must “‘view
the evidence in the light most favorable to the government,
resolving conflicts in the government’s favor, and accepting all
reasonable inferences that support the verdict.’” United States v.
Hamilton, 332 F.3d 1144, 1148 (8th Cir. 2003) (quoting United
States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003)).
To demonstrate entrapment,
“[T]he evidence must clearly have indicated that a
government agent originated the criminal design; that the
agent implanted in the mind of an innocent person the
disposition to commit the offense; and that the defendant
then committed the criminal act at the urging of the
government agent.”
United States v. Kummer, 15 F.3d 1455, 1459 (8th Cir. 1994)
(quoting United States v. Shaw, 570 F.2d 770, 772 (8th Cir. 1978)).
34
This Court has explained:
As an affirmative defense, entrapment is a question of
fact generally left to the jury. United States v.
Coleman, 284 F.3d 892, 894 (8th Cir. 2002). A defendant
alleging entrapment, however, is not entitled to an
entrapment instruction unless “sufficient evidence exists
from which a reasonable jury could find entrapment.”
United States v. Neal, 990 F.2d 355, 357 (8th Cir. 1993).
This requires a defendant to show “that the government
agents implanted the criminal design in [his] mind[ ] and
induced [him] to commit the offense.” United States v.
Cannon, 88 F.3d 1495, 1504 (8th Cir. 1996). If a
defendant can produce sufficient evidence of inducement,
then the burden shifts to the prosecution to prove beyond
a reasonable doubt that the defendant was predisposed to
commit the crime. United States v. Berg, 178 F.3d 976,
980 (8th Cir. 1999); see also United States v. Eldeeb, 20
F.3d 841, 843 (8th Cir.1994) (“It is clear that when
entrapment is an issue, the government must prove the
absence of entrapment beyond a reasonable doubt.”). “If
the defendant exhibits any predisposition to engage in
the criminal conduct, the district court need not
instruct the jury on entrapment.” Id.
United States v. Kendrick, 423 F.3d 803, 807 (8th Cir. 2005).
In Jacobson v. United States, 503 U.S. 540, 548 (1992), the
Supreme Court recognized the balance that must be struck between
the difficulties of enforcing laws and the government’s use of
informants. The Supreme Court stated,
[T]here can be no dispute that the Government may use
undercover agents to enforce the law. “It is well
settled that the fact that officers or employees of the
Government merely afford opportunities or facilities for
the commission of the offense does not defeat the
prosecution. Artifice and stratagem may be employed to
catch those engaged in criminal enterprises.”
Id. (quoting Sorrells v. United States, 287 U.S. 435, 441 (1932)).
The Court simply cautioned that “[i]n their zeal to enforce the
law, however, Government agents may not originate a criminal
35
design, implant in an innocent person's mind the disposition to
commit a criminal act, and then induce commission of the crime so
that the Government may prosecute.” Id.
The Supreme Court instructed that, when the government induces
a defendant to commit a crime, the government must prove beyond a
reasonable doubt that the defendant was predisposed to commit the
criminal act before the government intervened. Id. The Eighth
Circuit has summarized the gravamen of entrapment as follows: “The
critical question for us to consider is whether the defendant was
predisposed to committing the crime independent of the government's
meddling.” United States v. Brooks, 215 F.3d 842, 845 (8th Cir.
2000) (citing Jacobson, 503 U.S. at 549; see also Sorrells, 287
U.S. at 451 (holding controlling question in entrapment defense is
“whether the defendant is a person otherwise innocent whom the
Government is seeking to punish for an alleged offense which is the
product of the creative activity of its own officials.”)).
In this case, the jury was instructed as follows:
One of the issues relating to Counts 1, 2, and 3 is
whether the Defendant was entrapped.
If the Defendant was entrapped, he must be found not
guilty. The Government has the burden of proving beyond
a reasonable doubt that the Defendant was not entrapped.
If the Defendant before contact with law enforcement
officers or their agents did not have any intent or
disposition to commit the crime charged and was induced
or persuaded by the officers or their agents to commit
that crime, then he was entrapped. On the other hand, if
the Defendant before contact with officers or their
agents did have an intent or disposition to commit the
crime charged, then he was not entrapped, even though the
officers or agents provided a favorable opportunity to
36
commit the crime or made committing the crime easier or
even participated in acts essential to the crime.
(Final Jury Instruction No. 14.)
The evidence in the light most favorable to the government
shows that before any contact with government agents, and,
therefore, before any contact by a government agent, Zimmermann had
the intent to solicit bribes or gratuities in exchange for his
actions as a City Councilman. Therefore, he was not entrapped, and
his final sufficiency-of-the-evidence claim must fail.
The evidence shows that, prior to Carlson becoming a
cooperating witness, Zimmermann approached him and asked for a
$100,000 contribution to pay toward Zimmermann’s legal bill.
(2:155.) When Carlson offered to call Zimmermann’s attorney to
negotiate a lower fee, Zimmermann balked. Instead, he immediately
reduced the amount he was requesting by $60,000 and indicated
payment was urgent. (Id.) In response to Zimmermann’s improper
solicitation, Carlson reported the incident to the FBI and agreed
to cooperate further. (5:49.)
In addition, the evidence showed that Zimmermann solicited a
gratuity from another developer a year earlier. (GE 2, at A-1-2.)
Although Zimmermann was acquitted of Count 4, which charged that he
solicited a free retaining wall in exchange for taking official
Zoning and Planning Committee action, evidence of the solicitation
should be considered by this Court in its review of Zimmermann’s
entrapment claim. See United States v. Long, 952 F.2d 1520, 1525
37
(8th Cir. 1991) (stating reviewing court must consider all evidence
presented at trial, even evidence relating to counts on which the
jury did not convict).
In October of 2004, a not-for-profit group, Powderhorn
Residents Group, was developing townhomes in Zimmermann’s ward.
(1:30, 34.) Part of Powderhorn Residents Group’s funding came from
the City. (Id. at 40.) Part of the funding agreement required the
City’s approval following an inspection to ensure that the group
used the City’s monies in the manner it indicated it would when it
initially secured the financing. (Id.) The townhomes were not
allowed to be occupied until the City had inspected the property
and issued a Certificate of Completion, signed by two members of
the City Council. (Id.)
When the project was nearing completion, Kathy Wetzel-Mastel,
a project manager for the Powderhorn Residents Group, sent
Zimmermann an email requesting that he sign the Certificate of
Completion and obtain the second required signature, as well. (Id.
at 41-42; GE 2.) In lieu of simply responding to Ms. Wetzel-
Mastel’s request, Zimmermann asked whether the group could
construct the same retaining wall used on the project or at least
supply the materials for the wall free of charge on a third party’s
nearby home. (1:43.) Ms. Wetzel-Mastel testified that such a
retaining wall would be worth approximately $3,000, and Zimmermann
was found not guilty of soliciting a gratuity in violation of 18
38
U.S.C. § 666(a)(1)(B). Nevertheless, the incident shows that even
before Carlson and Zimmermann met, Zimmermann was illegally
soliciting gratuities from constituents. In short, Zimmermann
needed no inducement on the part of the government.
Even after Carlson began to contact Zimmermann at the behest
of government agents, Zimmermann’s recorded conduct reflects his
own culpable disposition. In the first recorded conversation,
after discussing Carlson’s need for assistance, Carlson simply asks
the open-ended question, “What can I do to help you?” (GE 16, at
A-7.) In reply, Zimmermann says, “Money, money, money.” (Id.).
Zimmermann also instructed Carlson as to how to avoid campaign
finance rules, further demonstrating predisposition to engage in
illegal conduct. The fact Zimmermann did not submit any of the
cash he received from Carlson to his campaign treasurer, likewise,
shows predisposition to take illegal gratuities and undermines
Zimmermann’s argument on appeal that the payments were nothing more
than violations of campaign finance rules.
Each of the videotaped transactions of the hand-to-hand
payments shows that Zimmermann readily accepted Carlson’s money,
and Zimmermann never questioned nor attempted to correct Carlson’s
characterizations of the payments as rewards for Zimmermann’s
support. Similarly, each of the payments was made in the context
of discussions about official city business. What is more,
Zimmermann’s lies to FBI agents on September 8, 2005 show his
39
guilty conscience and, consequently, his predisposition to commit
the crimes charged. He demonstrated through his lies that he knew
his actions were unlawful; yet, he accepted three separate payments
from Carlson and attempted to hide this fact from the FBI.
In short, viewing the evidence in the light most favorable to
the government and giving the government the benefit of all
reasonable inferences, there is substantial evidence that Carlson
did not induce Zimmermann to commit the offenses of conviction.
Further, there is substantial evidence supporting the government's
proof that Zimmermann was predisposed to commit the offenses.
Accordingly, Zimmermann’s conviction should be affirmed on these
grounds, as well.
III.THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT
LIMITED ZIMMERMANN TO CALLING 8 OF HIS 13 PROPOSED WITNESSES
TO TESTIFY THAT ZIMMERMANN NEVER SOUGHT A GRATUITY FROM THEM
Zimmermann lastly argues that the district court erred when it
limited him to calling eight of his proposed thirteen witnesses,
each of whom would have testified as to their dealings with
Zimmermann as a member of the City Council and, specifically, as to
his service on their behalf without soliciting a gratuity. It is
settled law that the trial court has broad discretion to limit the
number of witnesses a party may call, particularly on a single
point in issue. See United States v. Koessel, 706 F.2d 271, 275
(8th Cir. 1983). Thus, challenges to such evidentiary rulings are
for abuse of discretion and are subject to harmless error review.
40
United States v. Johnson, 463 F.3d 803, 808 (8th Cir. 2006). “The
test for harmless error is whether the erroneous evidentiary ruling
had a substantial influence on the jury's verdict.” United States
v. Lupino, 301 F.3d 642, 645 (8th Cir. 2002).
Excluding himself, Zimmermann called sixteen witnesses during
his eight-day trial. Of those, eight were called to testify as to
their experiences with Zimmermann as a City Councilman and he never
solicited a gratuity from them. Indeed, the trial court
appropriately characterized these witnesses as “constituent-
related.” (6:197.) After calling five of these constituent-
related witnesses, the government asked the district court to limit
the number of such witnesses as irrelevant and cumulative. (Id. at
32.) The district court heard argument from both sides and,
thereafter, allowed three additional constituent-related witnesses,
for a total of eight such witnesses, finding that this limitation
was in the interest of judicial economy. (Id. at 35.)
Thereafter, the district court allowed Zimmermann to make an
offer of proof as to what the additional five witnesses would have
testified. (Id. at 194-197.) The district court upheld its
earlier ruling and limited Zimmermann to calling eight total
constituent-related witnesses, each of whom would have testified
that they dealt with Zimmermann in his official capacity and that
he never solicited a bribe or gratuity from them. (Id. at 194-97.)
The district court noted, too, that Zimmermann chose the eight
9
While he complains on appeal about not being allowed to call
each of his thirteen constituent-related witnesses, at the time of
the district court’s ruling, Zimmermann was unsure whether he
intended to call each of the five who were not permitted to
testify. (6:196.)
41
witnesses he called, without any coercion or limitation by the
district court. (Id. at 199.) Thus, Zimmermann was allowed to
call his eight strongest witnesses, all of whom discussed their
personal experiences with Zimmermann and testified he did not
solicit gratuities from them.9
Thus, Zimmermann must concede that he was allowed to present
the testimony of eight witnesses who each testified that Zimmermann
never sought a gratuity from them. The proposition that defense
was trying to elicit through their testimony – that Zimmermann
provided constituent services without seeking a gratuity – was in
evidence for the jury’s consideration. Thirteen witnesses, rather
than eight, simply could not have made Zimmermann’s point any more
persuasive. Consequently, this claim should be rejected and
Zimmermann’s request for a new trial should be denied.
42
CONCLUSION
For all the foregoing reasons, the judgment of the District
Court should be affirmed.
CERTIFICATE OF COMPLIANCE
The undersigned attorney for the United States certifies this
brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32. The brief has 1107 lines of monospaced
type. The brief was prepared using WordPerfect X3. The
undersigned attorney also certifies that the computer diskette
containing the full text of the Brief of Appellee has been scanned
for viruses and to the best of our ability and technology, believes
it is virus-free.
Dated: June 8, 2007
Respectfully submitted,
RACHEL K. PAULOSE
United States Attorney
BY: Lisa D. Kirkpatrick
Assistant U.S. Attorney
600 U.S. Courthouse
300 South Fourth Street
Minneapolis, MN 55415
Attorneys for Appellee