                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          JUN 24 1997
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                 Clerk

UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                        No. 96-7054
v.
                                                  (E. District of Oklahoma)
                                                  (D.C. No. CR-95-60-1-S)
JOHN WILLIAM TRAPP, also known
as J.W. Trapp,

             Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before PORFILIO, LUCERO, and MURPHY, Circuit Judges.


      Appellant John William Trapp was indicted on one count of conspiracy to

manufacture marijuana in violation of 21 U.S.C. § 846 and one count of

racketeering in violation of 18 U.S.C. § 1962(c). The jury found him guilty of the

racketeering charge. Trapp now appeals his conviction on four grounds: (1) the

government failed to prove that at least one of the predicate acts of which Trapp

was found guilty was within the statute’s five year limitation period; (2) the



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
evidence was insufficient to sustain the jury’s guilty verdict; (3) the court abused

its discretion with respect to three different evidentiary rulings; and (4) the

government failed to deliver all requested discovery, and Trapp discovered new

evidence. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and

AFFIRMS Trapp’s conviction.

                                  BACKGROUND

      Trapp was elected Sheriff of Choctaw County, Oklahoma, on January 3,

1989 and served until he resigned in October 1995. In January 1990, the Federal

Bureau of Investigation (“FBI”) began investigating Trapp and his employees for

requesting and receiving bribes from marijuana growers and night club owners.

After a five-year investigation, the grand jury returned an indictment against

Trapp on September 27, 1995, charging conspiracy to manufacture marijuana in

violation of 21 U.S.C. § 846 and racketeering in violation of 18 U.S.C. § 1962(c).

In support of the racketeering charge, the government alleged Trapp committed

ten predicate bribery acts constituting a pattern of racketeering. 1

      Racketeering act six alleged Trapp received and agreed to receive bribes

from Jimmy Allen Foley and Joe Collvins. In 1989, Foley and Collvins were

growing marijuana on leased land in Choctaw County. In September or October




      Because the jury found Trapp guilty of predicate acts six, seven, and eight,
      1

we limit our discussion to only those three acts.

                                          -2-
of 1989, Mike Mitchell, the undersheriff, arranged a meeting with Foley at which

Mitchell solicited bribes in return for Mitchell and Trapp’s abstention from

arresting Foley and Collvins for marijuana production. Foley and Mitchell

arranged a subsequent meeting at which Trapp was present. At this subsequent

meeting, Trapp also solicited bribes from Collvins. Foley and Collvins agreed to

pay Trapp and Mitchell $10,000 for protection from prosecution for growing

marijuana. Mitchell later requested an additional $2,500 because Trapp “thought

the ten was about what he should get.” R. at 716-17. In either December 1989 or

January 1990, Mitchell again approached Foley and told him that the payoff for

1990 growing season would be $20,000. Foley and Collvins decided not to grow

marijuana in 1990.

      Racketeering act seven alleged Trapp solicited a bribe from David Edward

Grant, a chef who had previously been arrested for marijuana cultivation. In

1991, Trapp began investigating several complaints from Grant’s neighbors about

Grant shooting toward them or their property. Sometime in the summer of 1991,

Trapp reprimanded Grant for the shootings and told him that if he was planning to

grow marijuana on his property, he would need to pay Trapp $12,000. Later, in

the summer of 1992, Trapp arrested Grant for extortion, telling Grant “that’s what

that twelve thousand dollars could help take care of.” R. at 863-64. The charges

against Grant were later dismissed.


                                        -3-
      Racketeering act eight alleged Trapp solicited a bribe from Randy Lee

Chappell who ran the Fish Market in Choctaw County. Chappell sold speed and

crank at the Fish Market and split the profits with Gene Wynn, owner of the Fish

Market. On January 10, 1990, Trapp met with Chappell at the Fish Market and

inquired about the drug sales. Trapp stated “he didn’t mind a man making some

money but he wanted his part of it,” and indicated that he expected twenty-five

percent of the money from any drug sales. R. at 563-65. Later the same day, the

Fish Market was raided by state drug agents. After Chappell was arrested, Trapp

met with Chappell to be sure that Chappell had said nothing to the drug agents

about his solicitations. Trapp then instructed Chappell to tell the agents that

Trapp had been at the fish market only to investigate rumors. While out of jail on

bond two days after his arrest, Chappell contacted the FBI about the activities at

the fish market and about Trapp’s solicitation of bribes.

                                    ANALYSIS

A.    WAIVER

      Trapp argues that predicate acts six, seven and eight did not occur within

the five year limitation period for criminal violations of the Racketeer Influenced

and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. 2 In this case,



      2
        Predicate Acts one, two, five, and ten, as alleged in the indictment, were
all within the five year statute of limitations. [Record at 15, 18-21, 25, 30]

                                         -4-
Trapp raised the statute of limitations defense for the first time in his post-trial

motions. Whether an affirmative defense has been waived is a mixed question of

law and fact which “require[s] us to accept the district court’s factual conclusions

unless clearly erroneous but review the application of the facts to the law under a

de novo standard.” F.D.I.C. v. Oaklawn Apartments, 959 F.2d 170, 173 (10th Cir.

1992). Because whether Trapp has waived his statute of limitations defense

involves primarily a consideration of legal principles, we review that claim under

a de novo standard. Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 850 (10th

Cir. 1986) (mixed question of law and fact is reviewed de novo when issue

involves primarily consideration of legal principles); see also Sheet Metal

Workers Int’l Assoc. v. Air Systems Eng’g, Inc., 831 F.2d 1509, 1510 (9th Cir.

1987) (whether statute of limitations defense was waived was question of law

subject to de novo review). We find Trapp waived his statute of limitations

defense.

      In order to prevail on a criminal RICO charge, the government must prove

that one of the alleged predicate acts occurred within the five year statute of

limitations. Although RICO does not expressly provide for a statute of

limitations, 18 U.S.C. § 3282 contains a residual five-year criminal statute of

limitations. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S.

143, 146, 155 (1987) (“[T]he 5-year statute of limitations applies to criminal


                                           -5-
RICO prosecutions [] because Congress has provided such a criminal limitations

period when no other period is specified.”).

      Trapp relies on Waters v. United States for the proposition that the statute

of limitations poses a jurisdictional bar and can thus be raised at any time. 328

F.2d 739, 743 (10th Cir. 1964). However, in United States v. Gallup, this court

held, under circumstances remarkably similar to this case, the statute of

limitations to be an affirmative defense, not a jurisdictional bar. 812 F.2d 1271,

1280 (10th Cir. 1987). 3 In Gallup, the defendant contended that “there was

insufficient evidence of an overt act in furtherance of the conspiracy under § 371,


      3
        In United States v. Cooper, 956 F.2d 960, 961-62 (10th Cir. 1992), this
circuit reaffirmed the principal holding of Waters. However, both Cooper and
Waters are inapposite to this case. Those cases stood for the proposition that a
“substantive offense could not be prosecuted if it was not filed before the
expiration of the limitation period.” Cooper, 956 F.2d at 961 (emphasis added)
(holding when information filed after expiration of statute of limitations, statute
of limitations served as bar to prosecution without express waiver by defendant).
In fact, the court in Cooper specifically distinguished Gallup because it “does not
deal with the issue of whether the statute of limitation is a bar to prosecution of a
substantive offense[, but rather] . . . whether, in a conspiracy case, the
government had to prove an overt act charged in the indictment was committed
before the limitation expired.” Id.
       United States v. Stoner dealt with the question whether the statute of
limitations for a conspiracy charge is jurisdictional. 98 F.3d 527, 532-33 (10th
Cir. 1996), reh’g en banc granted Mar. 3, 1997. Stoner involved a situation
where the government had failed to allege at least one specific act in furtherance
of the conspiracy within the limitations period. Id. Here, however, the
government did allege certain predicate acts were committed within the RICO
statute of limitations. It just so happened, however, that the jury only found the
occurrence of three predicate acts, none of which occurred within the five-year
limitations period. Thus, Stoner is also inapplicable to this case.

                                         -6-
occurring within the statutory period of limitation.” Id. The court held that

Gallup had waived the statute of limitations defense because he failed to raise the

issue during trial. Id.

      It was in post-trial motions that Trapp first raised the statute of limitations

as a bar. This is insufficient to preserve this issue for appeal. See Gallup, 812

F.2d at 1280; see also Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 722 (10th

Cir. 1993) (holding issue raised for first time in post-trial motion not preserved

for appeal). In fact, this court has even held that a statute of limitations defense

which was raised in the defendant’s answer and pretrial order was waived because

it was never mentioned again until after trial. See Cavic v. Pioneer Astro Indus.,

Inc., 825 F.2d 1421, 1425 (10th Cir. 1987).

B.    SUFFICIENCY OF THE EVIDENCE

      Trapp argues the government presented insufficient evidence to prove

predicate acts six, seven, and eight. This court reviews “the evidence in the light

most favorable to the government to determine whether any rational[] trier of fact

could find the defendant guilty beyond a reasonable doubt.” United States v.

Horn, 946 F.2d 738, 741 (10th Cir. 1991). To prove a pattern of racketeering

activity under RICO, the government “must establish two or more predicate

offenses which are related to the activities of the enterprise.” United States v.

Zang, 703 F.2d 1186, 1194 (10th Cir. 1982), cert. denied, 464 U.S. 828 (1983).


                                          -7-
      Trapp claims the evidence supporting predicate act six was insufficient to

show that Trapp, rather than Mitchell, solicited and received bribes from Collvins

and Foley. A reasonable juror, however, could have found Trapp and Mitchell

shared a common objective to solicit and receive bribes. Both Collvins and Foley

testified as to their conversations with Mitchell and Trapp and the circumstances

of the meeting between the four. This was sufficient evidence for a reasonable

juror to have found Trapp guilty of predicate act six.

      Trapp alleges that his conviction on predicate act seven involves an

impermissible variance between the evidence at trial and the allegation in the

indictment. The propriety of a variance in the evidence is a question of law

reviewed de novo. United States v. Cardall, 885 F.2d 656, 670 (10th Cir. 1989).

In the indictment, the government alleged that the solicitation constituting

predicate act seven took place in “about the summer of 1989.” At trial, however,

the key witness, Grant, testified that the solicitation occurred in 1991. 4 Trapp

appears to claim that this variance in dates precludes any reasonable jury from

finding him guilty of predicate act seven. A variance in date alone does not

establish that no rational trier of fact could have believed the witness’ testimony.

See United States v. Nunez, 668 F.2d 1116, 1127 (10th Cir. 1981) (finding jury




      We note that based on this testimony adduced at trial, predicate act number
      4

seven would have indeed fallen within the five year statute of limitations.

                                         -8-
could reasonably convict defendant even though there was variance in time

alleged in indictment and time proven at trial).

      Trapp claims witness Chappell was not credible and that his testimony

concerning predicate act eight was uncorroborated. Trapp thus seems to argue

that no reasonable jury could have found him guilty. This court, however, has

“recognized the general rule that in a criminal case a jury may convict a defendant

on the uncorroborated testimony of an accomplice.” United States v. Sloan, 65

F.3d 861, 863 (10th Cir. 1995), cert. denied, 116 S.Ct. 824 (1996). Moreover,

this court has held that “[c]redibility choices are resolved in favor of the jury’s

verdict.” Horn, 946 F.2d at 741. There is thus no reason to disturb the jury’s

finding that Trapp was guilty of predicate act eight.

C.    EVIDENTIARY RULINGS

      Trapp claims the trial court erred in making three specific evidentiary

rulings. First, Trapp takes issue with what he characterizes as hearsay testimony

of Mitchell, Trapp’s undersheriff. We review this claim under an abuse of

discretion standard. United States v. Wolf, 839 F.2d 1387, 1393 (10th Cir.), cert.

denied, 488 U.S. 923 (1988) (stating district court’s decision to admit statements

of co-conspirator under Fed. R. Evid. 801(d)(2)(E) is reviewed for abuse of

discretion).




                                          -9-
       Co-conspirator statements are not considered hearsay under Fed. R. Evid.

801(d)(2)(E) and may properly be admitted if the trial court finds: “1) a

conspiracy existed; 2) both the declarant and the defendant against whom the

declaration is offered were members of the conspiracy; and 3) the statement was

made in the course of and in furtherance of the conspiracy.” United States v.

Caro, 965 F.2d 1548, 1557 (10th Cir. 1992). Any factual findings made by the

district court underlying the decision to admit are reviewed under a clearly

erroneous standard. United States v. Peveto, 881 F.2d 844, 852 (10th Cir.), cert.

denied, 493 U.S. 943 (1989).

      Trapp claims the district court did not make a finding that a conspiracy

existed and thus the first element of Caro was not met. The record, however,

shows that the court in fact made two such findings. Based on the cumulative

testimony of several witnesses regarding Trapp’s collaboration with others to

solicit bribes, the district court was not clearly erroneous in finding there was

sufficient evidence a conspiracy existed. Accordingly, we find the district court

did not abuse its discretion by admitting Mitchell’s testimony.

      Trapp further claims the trial court erred when it failed to strike testimony

elicited through the government’s improper use of leading questions. In

reviewing cases involving leading questions under Fed. R. Evid. 611(c), “we . . .

reverse on the basis of improper leading questions only if ‘the judge’s action . . .


                                         -10-
amounted to, or contributed to, the denial of a fair trial.’” Miller v. Fairchild

Industries, Inc., 885 F.2d 498, 514 (10th Cir. 1988), cert. denied, 494 U.S. 1056

(1990) (quoting McCormick on Evidence 12 (Cleary, ed., 1984)).

      During direct examination of witness Collvins, the government improperly

used leading questions. Pursuant to Fed. R. Evid. 611(c), the court admonished

the government to refrain from using leading questions. Trapp, however, argues

the court should have further corrected the situation by striking the testimony.

Trapp claims he was prejudiced and made to look less credible when he was

forced to object and to request curative admonitions in front of the jury. We find

this argument unpersuasive. Having to object and to request the court to

admonish the government in front of the jury do not necessarily amount to the

denial of a fair trial. The district court corrected the impropriety by both

sustaining Trapp’s objections and admonishing the government. The district court

was required to do no more. United States v. Gant, 487 F.2d 30, 35 (10th Cir.

1973), cert. denied, 416 U.S. 941 (1974) (finding district court made genuine

effort to prevent improper use of leading questions).

      Trapp’s third evidentiary claim is that the court should have stricken

Foley’s testimony because he invoked his Fifth Amendment right against self

incrimination on certain questions during cross examination. When Foley

invoked this right during trial, Trapp neither made a motion to strike nor to order


                                          -11-
the witness to answer. We thus review this claim under a plain error standard.

United States v. Young, 470 U.S. 1, 6-7 (1985).

      Trapp relies on United States v. Montgomery to argue the trial judge should

have stricken Foley’s testimony. 998 F.2d 1468 (9th Cir. 1993). In Montgomery,

the Ninth Circuit found the district court did not abuse its discretion in striking a

witness’ entire testimony after the witness refused to submit to cross examination.

Montgomery, 998 F.2d at 1479. It does not follow from Montgomery, however,

that a court is always required to strike testimony when a witness invokes the

Fifth Amendment. Rather, “‘[t]he district court’s power to control the conduct of

trial is broad.’” Id. (quoting United States v. Parza, 612 F.2d 432, 438 (9th Cir.

1979)).

      In United States v. Esparsen, 930 F.2d 1461, 1469 (10th Cir. 1991), cert

denied, 502 U.S. 1036 (1992), this court stated:

      Courts have balanced [the competing concerns of the right to present
      witnesses with the goal of eliciting the truth through cross
      examination] by drawing a line between direct and collateral matters.
      . . . When the refusal to answer cross-examination questions
      involves collateral matters, we have held in the analogous situation
      of a prosecution witness who invokes the fifth amendment that the
      testimony should not be struck.

The questions which Foley refused to answer dealt with factual issues in pending

charges against him in a different state. These were clearly not matters directly

affecting Trapp’s case. Trapp claims the questions were relevant to credibility.


                                         -12-
Before he refused to answer Trapp’s questions, however, Foley had already

admitted several times that he had grown marijuana in the past. Thus, Trapp’s

desire to diminish the witness’ credibility had already been achieved; his ability to

search for the truth during cross examination was not impaired.

      We therefore find the district court did not err in making the three

challenged evidentiary rulings.

D.    FAILURE TO PRODUCE DISCOVERY AND NEW EVIDENCE

      Trapp claims the government violated Fed. R. Crim. P. 16(a)(1)(D) by

failing to deliver all requested discovery. Here again, Trapp claims the evidence

purportedly withheld was relevant to credibility of witnesses. He asserts the

following matters were withheld by the government: 1) evidence of a felony

check charge against a witness; 2) evidence of prior state charges against a

witness; 3) dismissal of state charges against the same witness; and 4) results of a

witness’ polygraph test.

      According to Trapp, the government’s failure to disclose the witness’

complete criminal records and polygraph test violates Brady v. Maryland, 373

U.S. 83 (1963). “[C]laims that the prosecution violated Brady, including the

determination of whether suppressed evidence was material,” are reviewed de

novo. United States v. Hughes, 33 F.3d 1248, 1251 (10th Cir. 1994). “To

establish a Brady violation, the defendant must establish: 1) that the prosecution


                                         -13-
suppressed evidence; 2) that the evidence was favorable to the accused; and 3)

that the evidence was material.” Id.

      Trapp presented no evidence to establish the government suppressed any

evidence. Trapp merely states that the government should have turned over all

evidence of an exculpatory nature with respect to the witnesses. Counsel’s cross

examination of those witnesses, however, indicates that Trapp knew of the

criminal charges against the witnesses.

      With respect to Trapp’s claim that the government suppressed the results of

a witness’ polygraph test, it is true the government did not disclose those results.

The government, however, states it had no intention of introducing the evidence

and the test results were in fact never introduced. Under those conditions, there

was no Brady violation. See United States v. Hall, 805 F.2d 1410, 1417-18 (10th

Cir. 1986) (finding when government does not intend to introduce results of

polygraph at trial, “the charts and reports [are] not discoverable under the

provisions of Rule 16(a)(1)(D) Fed. R. Crim. P.”).

      Trapp also seeks a new trial based on newly discovered evidence. “The

allegedly newly discovered evidence must be more than impeaching or

cumulative; it must be material to the issues involved; it must be such that it

would probably produce an acquittal; and a new trial is not warranted if the new

evidence is such that, with reasonable diligence, it could have been discovered


                                          -14-
and produced at the original trial.” United States v. Youngpeter, 986 F.2d 349,

356 (10th Cir. 1993).

      The newly discovered evidence is a witness’s statement that he “was going

to lie about everything to just hang J.W. Trapp.” R. at 1469. Trapp gives no

explanation why he could not have discovered this evidence with reasonable

diligence prior to or during the trial. More important, Trapp makes no showing

that this evidence is material. He argues that the evidence would have been used

for impeachment purposes and states that “[i]f the jury had known the true

circumstances surrounding the witnesses,” the jury would have acquitted Trapp as

to predicate acts six and seven. This alone is insufficient. According to

Youngpeter, the “newly discovered evidence must be more than impeaching.” 986

F.2d at 356. Trapp is therefore not entitled to a new trial.

                                  CONCLUSION

      For the reasons set forth above, we AFFIRM the conviction entered in the

United States District Court for the Eastern District of Oklahoma.

                                        ENTERED FOR THE COURT,



                                        Michael R. Murphy
                                        Circuit Judge




                                         -15-
