United States v. Gary Dean Zimmermann ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1062
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Gary Dean Zimmermann, *
*
Defendant - Appellant. *
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Submitted: September 24, 2007
Filed: December 17, 2007 (Corrected: 12/20/2007)
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Before MURPHY, MELLOY, and SMITH, Circuit Judges.
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MURPHY, Circuit Judge.
A jury found Gary Dean Zimmermann guilty of three counts of accepting a
gratuity in violation of 18 U.S.C. § 666(a)(1)(B). He appeals, arguing that there was
insufficient evidence to support the verdict and that the district court1 abused its
discretion by limiting the number of defense witnesses. We affirm.
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
I.
Gary Dean Zimmermann represented the sixth ward on the Minneapolis City
Council from 2002 until 2005 and was one of the six members on the council's zoning
and planning committee. The boundaries of the sixth ward were redrawn in a 2002
redistricting plan which did not include Zimmermann's residence. He and fourteen
other plaintiffs sued to set aside the plan, and they incurred approximately $100,000
in legal fees by the time of the acts charged in the indictment.
Real estate developer Gary Carlson was planning a multimillion dollar mixed
use project known as Chicago Commons on the edge of the sixth ward. His concept
was to have condominiums on the upper floors and service oriented retail stores on the
ground level, such as a grocery, coffee shop, and dry cleaner. Carlson estimated that
his potential profit from the project would be eight million dollars. One of the
problems he faced, however, was that the zoning classification for the property would
permit only two retail spaces in the building and this would limit his ability to market
the project as a full service living environment. In order to obtain more retail space,
Carlson submitted a rezoning application to the city planning department in the fall
of 2004. Such an application would be reviewed by a staff member who would then
make a recommendation on it to the city planning commission which would give its
assessment to the council's zoning and planning committee on which Zimmermann
sat. Zimmermann's committee would then recommend to the city council whether the
application should be granted.
Carlson recognized that his rezoning application faced opposition due to
neighborhood resistance to additional retail in the area. Although his Chicago
Commons project was located in the eighth ward, it was right across the street from
Zimmermann's sixth ward and an establishment known as Village Market. Village
Market was an indoor bazaar at 24th Street and Chicago Avenue which catered to the
Somali-American community. This market and its surrounding area had experienced
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problems of overcrowding, poor management, violence, and drug trafficking. The fact
that the owner of Village Market, Azzam Sabri, had originally been involved in the
development of Chicago Commons contributed to a neighborhood group's opposition
to additional retail space for the project because of concern that the project would
attract similar problems to those plaguing Village Market.
Carlson met Zimmermann at city hall in the fall of 2004, and the two saw each
other again a few months later, but on neither occasion did they engage in substantive
conversation. During their third meeting at a groundbreaking ceremony, however,
Zimmermann solicited $100,000 from Carlson for the legal bill he and the other
plaintiffs had incurred in their unsuccessful challenge to the redistricting plan. When
Carlson offered to negotiate with the plaintiffs' attorney for a reduced fee,
Zimmermann lowered the amount of his request, saying that $40,000 would "make
[the attorney] go away." On May 20, 2005 Carlson and Zimmermann ran into each
other again, and Zimmermann asked whether Carlson had given further thought to
their previous discussion about money. Carlson told Zimmermann that he could help,
and Zimmermann stressed that the issue was urgent. Carlson stated that this
conversation prompted him to contact the FBI the next business day and that he then
began acting as a cooperating witness.2 All his further conversations with
Zimmermann were undertaken and recorded at the direction of the FBI.
On June 6, 2005 Carlson attended a fundraiser for Zimmermann at the Black
Forest Inn. While wearing a wire, Carlson requested Zimmermann's help to lobby
planning commission members in advance of the upcoming vote on his rezoning
application. Zimmermann agreed, and Carlson responded that he would "give
[Zimmermann] some help." Carlson asked Zimmermann what he could do to help,
and Zimmermann replied "money, money, money." Zimmermann suggested that the
2
Carlson had first approached the FBI on May 3, 2005 to report corruption
involving the Minneapolis city government unrelated to the issues here.
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redistricting lawsuit attorney would likely write off the entire bill but that a donation
by Carlson of four to five thousand dollars would demonstrate good faith. They
agreed to keep Carlson's contribution between the two of them. Carlson then proposed
"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 replied, "Okay. You got it." Later
Zimmermann talked about trying to raise more money for his campaign and referred
to the contribution limit of $300 per person. He suggested having Carlson donate in
the names of his "cousins."
On June 14, 2005 Carlson and Zimmermann met at a Minneapolis restaurant.
Carlson wore both a hidden camera and an audio recording device. At the beginning
of their conversation, Carlson handed Zimmermann $5,000 and stated "Before I
forget, Dean. Ah. This is for that attorney thing or whatever we talked about." The
video showed Zimmermann taking the money and putting it in his pocket and
recorded Carlson saying "So, use it what [sic] you want." The rest of the conversation
focused on Carlson's rezoning issue and what could be done at the zoning and
planning committee in light of the planning commission's decision to recommend
denial of his zoning application. The two also discussed ways to infuse money into
Zimmermann's campaign.3 Zimmermann suggested using straw donors and having
Carlson pay them a little extra to say that the contributions came from them.
The zoning and planning committee recommended denying Carlson's rezoning
request on July 14, 2005. Zimmermann did not arrive at the meeting until after the
vote was taken on Chicago Commons, but he was present when the city council
unanimously denied Carlson's application on July 23. During a conversation on
August 3, Carlson referred to the $5000 he had given Zimmermann and asked what
had prevented his rezoning application from passing the zoning and planning
3
Zimmermann had moved into the new sixth ward so that he could run again for
sixth ward council member.
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committee. Zimmermann explained there had been strong opposition to additional
retail in the area due to its proximity to the Village Market and the problems
associated with it.
On August 15, 2005 Zimmermann and Carlson met at a potential site for a new
Somali mall. The site was located approximately a mile from Chicago Commons at
East Franklin and Cedar Avenue. Carlson wanted to develop the new Somali mall to
divert merchants and business away from Village Market in an effort to eliminate
opposition to his Chicago Commons rezoning application. Carlson and Zimmermann
talked about the issues involved in receiving city approval for the new mall and
Carlson asked for Zimmermann's help in getting the project through the city council.
During this discussion Carlson gave Zimmermann $1200 in campaign contribution
envelopes with the names of four straw donors. Carlson told Zimmermann that he had
given the "donors" a little extra so that they would verify that the contributions were
theirs.
Carlson went to Zimmermann's home on August 31, 2005. While there Carlson
gave Zimmermann $1000 in an unmarked campaign contribution envelope and
suggested that the money was from people who wanted Zimmermann reelected.
Carlson told Zimmermann to write in the donor names himself and stated, "That's for
getting us the zoning over there," referring to the zoning for the development of the
new Somali mall. Zimmermann replied "So . . . alright."
Zimmermann went to Chicago Commons on September 8, 2005 to meet with
Carlson but instead found two FBI agents who wanted to talk with him. The agents
asked him about the payments from Carlson. Zimmermann denied having received
any money from Carlson and claimed that he had instructed Carlson to send money
for the redistricting lawsuit directly to the plaintiffs' attorney. The agents warned
Zimmermann not to lie. At that point Zimmermann admitted that he had received
$1200 in campaign donation envelopes from Carlson but claimed that he still had the
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funds because he had had suspicions about the validity of the contributions. The
agents then showed him the video of his June 14 meeting where he had accepted
$5000 from Carlson. Zimmermann admitted that he had accepted that money in
addition to the $1200 he had previously acknowledged. He again stated that he had
not received any other funds from Carlson. After being confronted with the recording
of the August 31 meeting, he admitted that he had in fact received an additional
$1000. He claimed that all of the funds were in a desk drawer at his home.
On January 18, 2006 a federal grand jury returned a four count indictment
against Zimmermann. Each count alleged that Zimmermann knowingly and corruptly
solicited something of value with intent to be influenced or rewarded in connection
with business with the government of the City of Minneapolis in violation of 18
U.S.C. § 666(a)(1)(B). Count one involved the $5000 that Zimmermann received
from Carlson regarding his rezoning application for Chicago Commons. Counts two
and three pertained to the $1200 and $1000 payments that Zimmermann received from
Carlson related to obtaining city approval for a new Somali mall. Count four
concerned a 2004 request by Zimmermann to have a retaining wall constructed
without cost.4
Zimmermann's jury trial began on July 31, 2006. The government called
Carlson and the FBI agents as witnesses and introduced the audio and video
recordings of Carlson's meetings with Zimmermann and of Zimmermann's FBI
interview. The agents testified about their execution of a search warrant at
Zimmermann's house; the only money they found there was the $1200 in campaign
contribution envelopes. Zimmermann's campaign treasurer testified that Zimmermann
4
After a constituent group asked Zimmermann to sign a certificate of
completion for a townhouse development, he asked if the group could construct a
retaining wall for one of his neighbors. The group responded that it could not afford
to build it, and Zimmermann then asked for leftover building materials so he could
construct the wall himself.
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had never mentioned anything about the $1200 and $1000 contributions. Larry
Leventhal, the plaintiffs' redistricting attorney, testified that Zimmermann had told
him that he had received a $5000 contribution to the redistricting lawsuit fund. There
was also evidence from which the jury could find that Zimmermann spent the $5000
and $1000 payments on personal expenses.
In addition to testifying on his own behalf, Zimmermann called sixteen
witnesses, eight of whom offered "constituent-related testimony" intended to show
that he lacked the predisposition to accept a bribe and was therefore entrapped by the
government. Each of the constituent witnesses testified that he or she had worked
with Zimmermann to obtain assistance with matters involving the city and that he had
never asked for anything in return. Zimmermann had intended to call thirteen
constituent witnesses, but the government objected to further cumulative testimony
after the first five testified. The district court decided that three more would be
sufficient.
The jury convicted Zimmermann of counts one, two, and three and acquitted
him on count four. The district court sentenced him to thirty months on each count,
to be served concurrently. Zimmermann now appeals.
II.
Zimmermann argues that the government did not present sufficient evidence
from which a reasonable jury could find one of the elements of the charged offenses
and that his convictions under 18 U.S.C. § 666(a)(1)(B) must therefore be overturned.
He claims that there was insufficient evidence that he had corruptly solicited any thing
of value of $5000 or more as the statute requires.5 On a claim of insufficient evidence
5
Section 666(a)(1)(B) reads
[w]hoever . . . [being an agent of a state or local government or agency
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we review the trial evidence "in the light most favorable to the government, resolving
evidentiary conflicts in favor of the government, and accepting all reasonable
inferences drawn from the evidence that support the jury's verdict." United States v.
Spencer, 439 F.3d 905, 913 (8th Cir. 2006) (citation omitted).
Zimmermann contends that the statute requires that the recipient of federal
funds, in this case the City of Minneapolis, must have expended $5000 in considering
Carlson's rezoning application for the value element to be satisfied. The plain
language of the statute does not readily lend itself to such a narrow interpretation,
however, and case law forecloses it.
To support his argument Zimmermann relies on a 1996 Second Circuit decision
overturning a § 666(a)(1)(B) bribery conviction on the basis that there was no
evidence that the value of the legislation sought had a $5000 value to the State of
Connecticut. United States v. Foley, 73 F.3d 484, 493 (2d Cir. 1996) (emphasis
added). The Supreme Court rejected this narrow construction of the statute the next
year in Salinas v. United States, 522 U.S. 52, 61 (1997), holding that "§ 666(a)(1)(B)
does not require the government to prove the bribe in question had any particular
influence on federal funds . . . ." We have already recognized that Salinas governs the
issue Zimmermann raises. United States v. Sabri, 326 F.3d 937, 943 (8th Cir. 2003),
aff'd, 541 U.S. 600 (2004). Salinas and Sabri make it clear that the government was
not required to prove that the city had spent at least $5000 in considering Carlson's
application.
thereof] 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 . . . shall be
fined under this title, imprisoned not more than 10 years, or both. 18
U.S.C. § 666(a)(1)(B).
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Zimmermann next argues that the things of value alleged in counts one, two,
and three did not satisfy the statutory requirement that they be worth $5000 or more.
We have not had occasion to decide how the $5000 value requirement in §
666(a)(1)(B) can be met, but other courts have employed several valuation methods.
See, e.g., United States v. Fernandes, 272 F.3d 938, 944 (7th Cir. 2001) ($5000
element satisfied because total bribes were greater than that and defendant received
additional things of value); United States v. Zwick, 199 F.3d 672, 689-91 (3d Cir.
1999) (value of development, potential tax benefits, permit fees, and paid bribes
satisfied value element), abrogated on other grounds by Sabri v. United States, 541
U.S. 600, 604-08 (2004); United States v. Mills, 140 F.3d 630, 633 (6th Cir. 1998)
(considering only the amounts of the charged bribes); United States v. Marmolejo, 89
F.3d 1185, 1193-94 (5th Cir. 1996) (employing "traditional valuation methods" and
recognizing intangibles as things of value).
Zimmermann's indictment alleged that the thing of value in count one was the
rezoning application for the Chicago Commons project and that the gratuity paid for
his assistance in obtaining the rezoning classification was $5000. Under any of the
various valuation methods which have been employed by other circuits, the amount
of the gratuity itself can satisfy the thing of value element if it is $5000 or more. See,
e.g., Fernandes, 272 F.3d at 944 (reasoning that the value of the bribes alone could
satisfy the value element). Since the gratuity alleged in count one met the $5000
value requirement and the evidence at trial was sufficient to prove it, no additional
inquiry is needed as to that count.
Whether the value element was also satisfied for counts two and three, which
alleged gratuities of $1200 and $1000 respectively, presents a different issue. The
indictment alleges that the thing of value associated with both counts is the
"development of a retail mall catering to Minneapolis's Somali-American
community." Intangible benefits have been held to satisfy the value requirement
elsewhere. See United States v. Marmolejo, 89 F.3d at 1192 (listing cases construing
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"anything of value" in criminal statutes to include intangibles). In determining the
value of intangibles the Marmolejo court looked to "traditional valuation methods."
Id. at 1194, citing United States v. Mongelli, 794 F. Supp. 529, 531 (S.D.N.Y. 1992).
Establishing the actual value of the intangible benefit is one such traditional method.
See Marmolejo, 89 F.3d at 1194; Mongelli, 794 F. Supp. at 531.
The government presented evidence that the development of a new Somali mall
in a different neighborhood could ease the neighborhood resistance to additional retail
at Chicago Commons by attracting tenants and customers away from Village Market
and improve the likelihood of the approval of Carlson's rezoning application. There
was evidence that the value of a rezoned Chicago Commons project was worth
millions of dollars to Carlson. The eighty one condominiums he hoped to sell had an
estimated value of $200,000 each, and Carlson's ability to market them effectively
depended upon obtaining a rezoning classification to permit additional retail space.
Since there was sufficient evidence that the benefit to Carlson from the gratuities paid
to Zimmermann for the development of a new Somali mall was of greater value than
$5000, the jury could reasonably find Zimmermann guilty of those counts.
Zimmermann also argues that the government presented insufficient proof that
a quid pro quo was intended in his dealings with Carlson and that he cannot be found
guilty of accepting payments for official actions that would have been taken regardless
of whether Carlson paid him. Section 666(a)(1)(B) prohibits both the acceptance of
bribes and the acceptance of gratuities intended to be a bonus for taking official
action. See 18 U.S.C. § 666(a)(1)(B) ("corruptly solicits or demands . . . intending to
be influenced or rewarded"); see, e.g., United States v. Griffin, 154 F.3d 762, 763 (8th
Cir. 1998) (difference between bribe and gratuity is that a quid pro quo arrangement
is required for a bribe but not for a gratuity). Zimmermann was indicted for,
convicted of, and sentenced for accepting gratuities rather than bribes. Compare
U.S.S.G. § 2C1.1 (bribes) with id. § 2C1.2 (gratuities). The government therefore was
not required to prove any quid pro quo.
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III.
Zimmermann next argues that he was entrapped as a matter of law because the
government did not produce sufficient evidence to sustain its burden to prove that he
was predisposed to commit the criminal acts. We review sufficiency challenges to a
jury verdict by taking the evidence "in the light most favorable to the government,
resolving evidentiary conflicts in favor of the government, and accepting all
reasonable inferences drawn from the evidence that support the jury's verdict."
Spencer, 439 F.3d at 913.
Entrapment occurs when a "government agent originated the criminal design,
. . . implanted in the mind of an innocent person the disposition to commit the offense,
and the defendant then committed the criminal act at the urging of the government
agent." United States v. Williams, 109 F.3d 502, 508 (8th Cir. 1997), quoting United
States v. Hulett, 22 F.3d 779, 781 (8th Cir. 1994). The "critical inquiry is whether the
government agent caused or induced the defendant to commit a crime he was not
otherwise predisposed to commit." Hulett, 22 F.3d at 781.
In order to be entitled to an entrapment instruction, a defendant must produce
some evidence that the government induced him to commit an offense. United States
v. Cannon, 88 F.3d 1495, 1504 (8th Cir. 1996). If the defendant makes this showing,
the burden shifts to the prosecution to prove beyond a reasonable doubt that the
defendant was predisposed to commit the crime, United States v. Kendrick, 423 F.3d
803, 807 (8th Cir. 2005), and entrapment may become a question of fact for the jury
to decide. United States v. Coleman, 284 F.3d 892, 894 (8th Cir. 2002). In this case
the issue of entrapment was put to the jury which was instructed that the burden was
on the government to prove that Zimmermann was predisposed to commit the crime.
The government presented ample evidence from which a jury could find beyond
a reasonable doubt that Zimmermann was predisposed to accept a gratuity. The
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evidence viewed in the light most favorable to the government revealed that
Zimmermann approached Carlson before he became an FBI cooperating witness and
solicited a substantial sum of money from him, purportedly to pay attorney fees for
the redistricting lawsuit. When Carlson offered to negotiate a lower fee with the
attorney, however, Zimmermann declined and instead lowered the amount of his
request significantly. At a later meeting Zimmermann again asked about the money,
indicating that his need was urgent. The government also offered relevant evidence
related to the count on which Zimmermann was acquitted to show that he had
requested free construction of a retaining wall from a constituent group before he ever
met Carlson. See United States v. Long, 952 F.2d 1520, 1525 (8th Cir. 1991) (all
evidence presented at trial may be considered when determining sufficiency of the
evidence relating to intent, including evidence not resulting in conviction). The FBI
recordings also show that Zimmermann initiated the idea of using straw donors for
campaign donations and told Carlson how to go about it. Finally, Zimmermann's
numerous lies during his FBI interview showed guilty knowledge and predisposition.
Viewing the evidence in the light most favorable to the government, there was
sufficient evidence showing that Zimmermann was predisposed to accept a gratuity
and was therefore not entrapped.
IV.
Finally Zimmermann argues that the district court abused its discretion by
limiting the number of his constituent witnesses. He contends that this denied him the
ability to counter the government's proof regarding an element of the entrapment
defense – the lack of predisposition to accept a bribe. A trial court has broad
discretion as to the number of witnesses a party may call on a point at issue. United
States v. Koessel, 706 F.2d 271, 275 (8th Cir. 1983). We therefore review a district
court's evidentiary rulings for abuse of discretion. United States v. Johnson, 463 F.3d
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803, 808 (8th Cir. 2006). Even if the district court abused its discretion, we will
uphold the conviction if any error was harmless. Id.Zimmermann called eight witnesses who presented constituent related
testimony for the purpose of establishing that he lacked the predisposition to accept
a bribe. All of these witnesses testified that Zimmermann had never solicited a reward
from them in the course of their interactions with him as a council member.
Zimmermann wanted to call thirteen witnesses to support this proposition, but the
government objected to the cumulative testimony after he called the first five. The
district court limited Zimmermann to three additional constituent witnesses of his own
choosing and allowed him to make an offer of proof as to what each of the other five
witnesses would have testified. The proposition that Zimmermann sought to establish
by calling all these witnesses was that he did not have the predisposition to accept a
bribe since he had solicited none from them. We conclude from examining the
testimony and Zimmermann's offer of proof that there would have been no appreciable
difference in the evidence if the additional constituents had testified. The district
court did not abuse its discretion in limiting the number of his testifying constituents
to a total of eight.
V.
Accordingly, we affirm the judgment of the district court.
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