If you go to the Citizens for Personal Rapid Transit website (CPRT.org), you'll notice they had a meeting recently at 2200 Clinton Avenue South in Minneapolis, the home of convicted felon Gary Dean Zimmermann.
Carlson says they need to get Zimmermann elected, then hands him an envelope and says “that’s for getting us the zoning over there.” [This envelope contains $1000 in the form of 10 $100 bills, given to Carlson by the FBI.]
Jenny Heiser, Zimmermann’s wife, comes in and Carlson asks for a campaign t-shirt. Carlson has a discussion with Heiser about line-drying their t-shirts and Heiser exits.
Zimmermann tells Carlson, “this guy down here [in the 9th. ward] is running against Schiff, Dave Bicking…[Schiff is a?] significant obstacle, this’ll be in his ward. He [Bicking] could use a little promotion, he’s got an uphill battle, but he’s got no relation with Hamoudi and those guys,” even though he met with the Sabris. One of them [I don’t recall if it was Zimmermann or Carlson] mentions Sheila Delaney, a candidate Hamoudi [Sabri] and his friends promoted, who withdrew from the race.
Carlson then says he thinks there are three people running in Zimmermann’s ward. Zimmermann replies by saying the “other guy” [other than Lilligren] is a “straw man we put up so there’ll be a primary.” He says the campaign wanted to have a primary to see “where we stood.” [I believe he also said something about his whole campaign knowing about this “straw man,” James Gorham.]
After lunch the prosecution continued its questioning of Agent Bisswurm. In response to questioning, Bisswurm explained that repetitive portions of the tape we just heard had been edited out, but the full and unedited version was supplied to the defense. He said a federal search warrant of Zimmermann’s home at 2200 Clinton was served on September 8, 2005. He explained that money was indeed found in the desk drawer: $1200 cash in four envelopes (Exhibits 34-37). He said all $1200 was there, but there was no trace of the $5000 or the original $1000. Docherty asked him is any of the original $100 bills (other than the $1200 in four campaign envelopes) were found in the house, and he said no. He said Zimmermann was asked where the $1000 was and he replied “all over the place.”
A reporter told me Zimmermann is expecting to return to Minneapolis by bus and check into a halfway house on July 10th.
I checked with the BOP again and they won't say whether he is or isn't going to return to Minneapolis on July 10th.
Also, my second Freedom of Information request for the Zimmemrann FBI tapes was denied. The FBI said I needed to get a signed waiver from Zimmermann. I sent a waiver form to Zimmermann weeks ago... I have not received a reply.
I have heard rumors that Zimmermann plans to return to politics and may run again for the city council.
If Zimmermann does return in July, I hope reporters ask him to sign the waiver so people can see what is on those tapes.
A federal appeals court has upheld the 2006 corruption conviction of former Minneapolis City Councilman Dean Zimmermann.
The 8th U.S. Circuit Court of Appeals ruled Monday that the evidence supported charges that he took an illegal gratuity for his support of a developer's projects.
The three judges on a panel of the court were unanimous in their 13-page opinion.
The appeals court also rejected the argument that Zimmermann was entrapped.
Zimmermann also appealed on the grounds that the trial judge limited the number of his constituents who testified he helped them without asking for anything in return.
The lower court let him call eight such witnesses, instead of the 13 he wanted. The appeals court found the excluded witnesses would not have made a difference.
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
Star Tribune reporter sues, says man he tried to interview nearly ran him over
Star Tribune reporter Paul McEnroe filed a lawsuit in Hennepin County District Court seeking more than $50,000 from a man he says nearly ran him down as he tried to interview him in 2005 about a Minneapolis City Hall bribery investigation.
As McEnroe approached Gary A. Carlson, who was in a pickup truck, Carlson accelerated and "caused the outside mirror" to "violently collide" with McEnroe's body. Carlson left the scene and failed to provide any assistance, the lawsuit said.
The matter was investigated by police, but no charges were filed, according to McEnroe's lawyer Fred Pritzker.
The reporter, who was out of the country and unavailable for comment Wednesday, suffered injuries to his left shoulder and arm as well as "emotional distress," the suit said.
At the time of the incident, Carlson was the CEO of the Chicago Commons Corp. and was involved in the investigation of Dean Zimmermann, a Minneapolis City Council member at the time.
Zimmermann, a Green Party member, is serving 2½ years in prison for bribery. He was convicted of taking three bribes totaling $7,200 from Carlson, who testified at the trial that the FBI had wired him with sound and video equipment.
The Strib published many puff pieces about Zimmermann and his bogus Personal Rapid Transit (PRT) boondoggle. After Zimmermann was convicted, the Strib ran an editorial asking the judge not to send Zimmermann to jail.
On the eve of the trial, the Strib published an article that painted an unflattering portrait of Gary Carlson.
Now, he is being harrassed with this lawsuit.
What did Gary Carlson do to deserve this treatment?
