United States v. Steven Leroy Long, Sr., and Jackie Don Clothier

894 F.2d 101, 1990 U.S. App. LEXIS 1061, 1990 WL 5617
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 29, 1990
Docket88-4783
StatusPublished
Cited by8 cases

This text of 894 F.2d 101 (United States v. Steven Leroy Long, Sr., and Jackie Don Clothier) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Steven Leroy Long, Sr., and Jackie Don Clothier, 894 F.2d 101, 1990 U.S. App. LEXIS 1061, 1990 WL 5617 (5th Cir. 1990).

Opinion

JERRE S. WILLIAMS, Circuit Judge:

Appellants Steven Leroy Long and Jackie Don Clothier appeal their convictions on one count of conspiracy, three counts of wire fraud, and two counts of interstate •transportation of stolen property. We affirm their convictions.

The events leading to Long’s and Clothier’s indictment and conviction begin with Harry W. Conley, who was a buyer and seller of crude oil and did business under a small corporation named KC Gathering and Trading (KC). In December 1986, Conley became involved in a business arrangement with Crown, Coal & Coke Company of Pittsburgh (CCC) to purchase and resell oil. In connection with the arrangement, he began searching for large quantities of crude oil. He contacted defendant Clothier, apparently an old friend and business acquaintance. Several days after their initial contact, Clothier got in touch with Conley and told him he had located a barge load, about 16,000 barrels, of crude oil for sale by Merit Oil and Gas Company of Lafayette, Louisiana. Merit was owned by defendant Steven Long. Conley and Clothier agreed to the terms and conditions of the sale, subject to approval by CCC. 1 Conley then made arrangements with CCC to purchase the oil for $13.00 per barrel and resell it to an Oklahoma corporation for $16.60 per barrel.

Shortly thereafter, a Merit invoice, addressed to KC and listing 16,300 barrels of crude oil as sold at $13.00 per barrel, was telefaxed to Conley at his request. Three days later, Conley telefaxed the invoice to CCC in Pittsburgh. Albert Muse of CCC then held a telephone conference with Conley and Clothier. Muse agreed to purchase the oil and wire the necessary funds, but only after CCC received verification of the amount of oil that was purchased. The parties agreed that the amount would be certified by E.W. Saybolt & Co. and that Conley would be present during the loading process.

Conley did not attend the loading. But he was soon telefaxed a number of documents. He received an E.W. Saybolt “gauge” report, indicating that 16,324.65 barrels of oil were loaded at Bayou De-Cannes on a certain barge and tugboat. He also received a boat log for the tugboat, indicating the oil had been loaded on December 28, and an E.W. Saybolt “strapping report” 2 for tank number 16204 at Bayou DeCannes. The gauge report and the original invoice also referred to this tank. Conley telefaxed the documents to CCC in Pennsylvania. Upon receipt of the documents, CCC wired $212,220.45 from its Pennsylvania account to Merit’s account in Louisiana. The day after the funds were transferred, Long purchased $81,000 worth of money orders with one of Merit’s checks. He had $54,000 worth of the mon *103 ey orders made out to Clothier. He paid Conley $32,000 ($27,000 in money orders and $5,000 in cash).

The oil was never delivered. It did not exist. All the verifying documents were fraudulent, apparently copied and altered from other unrelated documents. Long admitted that he agreed to allow Clothier to run the transaction through his company, permitting him to use his letterhead for the invoice and to use his bank account.

A federal grand jury indicted Long on three counts of wire fraud. Later, Clothier was added to each count in a superseding indictment. In a second superseding indictment, Conley was added. This indictment also added the conspiracy and interstate transportation of stolen property counts. On September 15, 1988, the grand jury handed down an amended second superseding indictment on which the trial was to proceed.

Prior to trial, Conley entered into a plea agreement with the government. Accordingly, he entered a guilty plea to a conspiracy charge resulting from his scheme to obtain a kickback fee for arranging CCC’s purchase of crude oil. He also agreed to cooperate in the prosecution of Long and Clothier.

On the morning of trial, Long and Clothier were arraigned on the amended second superseding indictment. During the arraignment, the judge allowed the United States, against objection by both defense counsel, to read into the record a change to the indictment that inserted a phrase into the language of Count IV, one of the wire fraud counts.

Before trial, counsel for Long and Clothier both filed Motions for Severance. The motions were denied and the two defendants were tried together and convicted on all counts. They now appeal the convictions.

I. Severance

Long and Clothier both contend, for different reasons, that their trials should have been severed. We may only review a trial court’s decision to deny a motion for severance for abuse of discretion. United States v. Wheeler, 802 F.2d 778, 781 (5th Cir.1986), cert. denied, Strauder v. United States, 480 U.S. 908, 107 S.Ct. 1354, 94 L.Ed.2d 524 (1987). To establish abuse of discretion, the defendant must “demonstrate compelling prejudice against which the trial court was unable to afford protection, and that he was unable to obtain a fair trial.” United States v. Massey, 827 F.2d 995, 1004 (5th Cir.1987). Neither Long nor Clothier meets this burden.

A. Long’s Motion for Severance

Long argues that his and Clothier’s trials should have been severed to allow him to raise significant relevant evidence that was excluded. Long contends that at trial he did not deny he was involved in the transaction with Clothier and Conley but rather insisted that he did not realize the arrangement was fraudulent. His defense was that he was merely acting as a conduit through which Clothier could run his apparently legitimate transaction. Because of the nature of this defense, Long argues, he needed to offer evidence that could explain why he thought he was needed as a conduit.

The evidence he asserts Long wanted to offer dealt with “prior bad acts” committed by Clothier that had resulted in making Clothier’s assets vulnerable to seizure by persons who had legal judgments against him. Long maintains that he agreed to allow his company to be used in the transaction because he knew that Clothier could not run the transaction through his own company. Since Clothier offered Long part of the “profit,” which would include money that Clothier already owed him, he thought the deal was a good one.

Before trial, Long filed a motion in li-mine seeking a ruling that would allow him to introduce documentary evidence that included the pleadings and other documents in previous law suits against Clothier as well as Clothier’s conduct leading to those suits. He sought introduction of the evidence under Fed.R.Evid. Rule 404(b), which allows such evidence “as proof of motive, opportunity, intent, preparation, plan, *104 knowledge, identity, or absence of mistake or accident.”' The court disallowed Long’s proffer of evidence on the ground that it created a risk of prejudice to Clothier. 3

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894 F.2d 101, 1990 U.S. App. LEXIS 1061, 1990 WL 5617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-steven-leroy-long-sr-and-jackie-don-clothier-ca5-1990.