Michael D’Amico, a former city council-lor for the City of Quincy, Massachusetts, was convicted of extortion under color of official right in violation of the Hobbs Act, 18 U.S.C. § 1951, and of making false statements to an agent of the Federal Bureau of Investigation (FBI) in violation of 18 tl.S.C. § 1001. The Hobbs Act conviction stems from D’Amico’s accepting $2,500 from Paul Gostoves, an FBI informant and owner of a Dunkin’ Donuts franchise, who was seeking to have the road in front of his Quincy store widened. The false statements conviction stems from D’Amico’s lying to an FBI agent about this transaction. D’Amico was sentenced to four months’ imprisonment, even though the applicable guidelines sentencing range (GSR) was 31-44 months. D’Amico appeals the Hobbs Act conviction, and the government cross-appeals the sentence.
I. D’Amico’s Appeal
A. Duplicitous Indictment
D’Amico first contends that the Hobbs Act extortion charge was duplicitous. The indictment charged D’Amico with one count of interfering and attempting to interfere with interstate commerce through extortion. 1 D’Amico argues that attempted extortion and completed extortion are separate crimes which had to be indicted in separate counts. The district court disagreed. 2
Duplicity challenges to an indictment are reviewed de novo.
See United States v. Kelley,
The question here is whether an indictment charging a completed and attempted extortion in one count is duplicitous. Ordinarily, it has been thought that attempt is a lesser-included offense of the completed crime and need not be charged at all.
See
Fed.R.Crim.P. 31(c);
United States v. Summit Refrigeration Group, Inc.,
No. 05-151,
Where, however, attempt is not a lesser-included offense of the completed crime, at least one court has held that an indictment charging attempt and the completed crime in the same count is duplicitous.
See United States v. Ramirez-Martinez,
The cases hold that attempts are lesser-included offenses of completed Hobbs Act violations.
United States v. Coyazo,
In asserting that he was prejudiced by the allegedly duplicitous indictment, D’Am-ico argues in his reply brief, as he did before the district court, that he was denied the right to a unanimous jury verdict. D’Amico contends that some jurors might have found him guilty of attempted extortion based in part on a finding that he believed the payment of $2,500 he received from Gostoves would deplete assets of the Dunkin’ Donuts franchise. D’Amico says that this belief, if proved, could supply the interstate commerce nexus required for conviction for attempt under the statute (we discuss the interstate commerce requirement further in part C. of this opinion). But, he argues, his belief about the source and effect of the payment was irrelevant to whether a completed extortion was committed; an actual impact on interstate commerce is required. Given that the proof for attempted extortion and completed extortion could be different, the argument concludes, the jury may not have been unanimous about whether D’Amico was guilty of extortion or attempted extortion.
While, as we have noted, one of the purposes of the prohibition against duplicitous indictments is to guard against conviction without a unanimous jury verdict, the fact that an indictment is not duplicitous on its face of course does not guarantee that a jury verdict will be unanimous, based on the evidence actually presented. We have observed a lack of clarity in the law about the requirement for juror unanimity when, as here, there are alternate paths to a verdict, and we have acknowledged that a count may contain alternative theories, factual scenarios and lines of evi-dentiary inference, “making generalizations about unanimity hazardous.”
United States v. Pagan-Santini,
B. Promise of an Official Act
D’Amico next challenges the district court’s denial of his Fed.R.Crim.P. 29 motion for a judgment of acquittal. He contends that the government failed to prove, as it must, that he accepted the $2,500 payment from Gostoves in exchange for a promise to perform an official act.
We review D’Amico’s sufficiency of the evidence claim de novo.
See United States v. Hall,
In relevant part, the Hobbs Act defines extortion “as the obtaining of property from another with his consent, induced ... under color of official right.” 18 U.S.C. § 1951(b)(2). “To establish guilt for extortion under color official right, the [government] must show ... that the defendant, a public official, has received an emolument that he was not entitled to receive, with knowledge that the emolument was tendered in exchange for some official act.”
United States v. Cruz-Arroyo,
This last requirement is rooted in the recognition that candidates for political office must raise money to fund their campaigns and that, to do so effectively, they often must make promises concerning their plans if elected. As the Supreme Court explained:
Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents ... shortly before or after campaign contributions are solicited and received from the beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, ‘under color of official right.’ To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation.
McCormick,
The government contends that the
quid pro quo
requirement does not apply in this case because there was evidence from which a jury could conclude that Gostoves’
*102
payment to D’Amico was not a campaign contribution. But, whatever inference the evidence may have permitted, the district court instructed the jury that to find D’Amico guilty, it had to conclude that “the payment was made in return for an agreement or a promise by [D’Amico] to perform some official act.... The
quid pro quo
is a promise to use the office for the benefit of the payor.” This instruction, unobjected to by the government, is the law of the case and supplies the standard by which we measure the sufficiency of the evidence.
See United States v. Zanghi,
D’Amico contends that, by the time Gos-toves paid him, the plan to widen the road in front of Gostoves’ Dunkin’ Donuts had already been approved by the city council. This undisputed fact, D’Amico contends, compels the conclusion that there was no quid pro quo. We disagree.
A reasonable jury could have found the following facts. In August 2001, the Quincy City Council considered issuing a permit to allow Home Depot, Inc. to construct a new building on the same street as Gos-toves’ Dunkin’ Donuts. At the Council meeting where this permit was considered, D’Amico told the Quincy traffic engineer, Jack Gillon, that he would oppose the permit unless Home Depot was required to pay for widening the road in front of the Dunkin’ Donuts. As a result of D’Amico’s demand, Home Depot agreed to pay for the road-widening project as part of the permit requirements.
On October 15, 2001, approximately two months after Home Depot agreed to pay to widen the road, Gostoves and D’Amico met at 10:30 pm. in the parking lot of Gostoves’ Dunkin’ Donuts to execute the payoff. 7 Gostoves made clear that he was paying D’Amico “for the road improvement” and because he needed “a friend ... to make sure that this is going to happen and happen the right way.” D’Amico assured Gostoves that the widening project would proceed but also promised that he “would meet periodically with the traffic department just to keep it going.” Promising to meet with the traffic department was not an empty gesture because there was a further approval process for the project, even after the Home Depot permit issued. In fact, D’Amico, as promised, contacted the traffic engineer shortly after receiving the payoff to make sure that the project remained on track.
A reasonable jury thus could have concluded that D’Amico explicitly promised Gostoves that, in exchange for the $2,500 payment, he would use his influence as a city councillor to pressure the traffic department to pursue the road-widening project. This conclusion is sufficient to ground a conviction. Until the project was completed, Gostoves had an interest in having an influential public official advocating for the project, and D’Amico willingly agreed to serve as that advocate.
*103 C. Interstate Commerce Requirement
In addition to the requirements discussed above, to prove a completed extortion, the government had to satisfy the Hobbs Act’s jurisdictional element of showing that D’Amico’s conduct “obstruct[ed], delayfed], or affect[ed] commerce.” 18 U.S.C. § 1951. To meet this requirement, the government had to prove only that there was a “realistic probability” that D’Amico’s conduct would affect interstate commerce.
United States v. Capozzi,
In an vein similar to his duplicity contention, D’Amico argues that the jury was presented with a legally invalid theory for establishing this realistic probability. As mentioned above, the money that Gostoves paid to D’Amico belonged to the FBI.
Supra
at n. 7. Relying on
United States v. DiCarlantonio,
The primary problem with D’Amico’s argument is that it does not appear that the jury was presented with the theory that Gostoves’ payment of FBI money to D’Amico established the effect on interstate commerce required for a substantive extortion conviction. The government did not make this argument, and the jury instructions, unchallenged on this point, did not suggest this theory. Thus, even if we assume that the payment of FBI money was insufficient to ground the jurisdictional finding, there is little likelihood that the jury was led astray.
D. Closing Argument
Finally, D’Amico claims that statements made by the prosecutor during her closing argument were improper and require a new trial. We review de novo whether the challenged statements were improper.
United States v. Nelson-Rodriguez,
During the trial, the government had sought to introduce evidence that in 1996, while a city counselor, D’Amico had accepted another $2,500 payment from Gos-toves. The district court excluded this *104 evidence. It did, however, allow the FBI agent who arranged Gostoves’ October 2001 payoff to D’Amico to testify that she was investigating D’Amico because Gos-toves told her about an alleged prior payment to D’Amico. This testimony was admitted only to explain the reason for the FBI’s investigation. The agent did not testify that Gostoves told her that the pri- or payment had been in the amount of $2,500.
Despite the fact that no evidence had been allowed about the amount of the prior payment, the prosecutor stated that the agent “told you that when she debriefed Mr. Gostoves ... he said that he made a $2,500 payment to the defendant in the past. And [the agent] told you that she wanted to corroborate that information by seeing if the defendant would take another such $2,500 payment” from Gostoves. D’Amico objected to this statement. The court immediately sustained the objection, commenting that it did “not recall [this] evidence,” and told the jury “to disregard any of this.” At the end of the government’s argument, D’Amico moved for a mistrial. The court denied the motion, ruling that, while the prosecutor’s comment about the prior payment was improper, D’Amico had failed to show prejudice, “especially in light of the [court’s] instruction to the jury members that they disregard the remark.”
D’Amico contends that the prosecutor’s entire statement concerning the prior payment was improper because there was no substantive evidence that Gostoves had ever made such a payment to D’Amico. The government acknowledges impropriety, but only to the extent that the prosecutor mentioned the amount of the prior payment. We agree with the government.
The prosecutor did not argue that there was proof of a prior payment from Gos-toves to D’Amico; she stated only that the FBI was investigating D’Amico to corroborate Gostoves’ claim that he had made such a payment. This was consistent with the evidence admitted without objection at trial and thus was a proper ground for argument.
See United States v. McKeeve,
The question before us is whether this misstatement warrants a new trial. To determine whether a prosecutor’s improper statement “so poisoned the well ‘that a new trial is necessary, we consider (1) whether the prosecutor’s misconduct was deliberate and/or isolated; (2) whether the [district] court gave a strong and explicit cautionary instruction; and (3) whether it is likely that any prejudice surviving the [court’s] instruction could have affected the outcome of the case.’ ”
United States v. Cormier,
The misstatement does not appear to have been a deliberate distortion of the evidence. As mentioned above, the FBI agent testified that Gostoves had reported
*105
making a prior payment to D’Amico. This evidence was not admitted to prove that such a payment had actually taken place, and the prosecutor was careful not to characterize it as such. The prosecutor did go beyond the evidence by stating the amount of the supposed prior payment. But there is no reason to suppose that the error was intentional, especially given that the prosecutor did not have a transcript of the agent’s testimony at her disposal.
See United States v. Carrasquillo-Plaza, 873
F.2d 10, 13 (1st Cir.1989) (stating that “allowance must be made for an attorney, even Government counsel, who out of haste or confusion misunderstands the substance of the previous testimony”). Moreover, the misstatement was a onetime event.
See United States v. Palmer,
The misstatement was followed by a timely and direct curative instruction. The district judge stated that she did not remember any evidence about the prior payment and told the jury to disregard the prosecutor’s entire discussion of the topic. This instruction was even broader than necessary because, as discussed above, the prosecutor’s statement was only improper to the extent that she mentioned the $2,500 figure. Moreover, in its final instructions, the court stated that counsels’ arguments are not evidence, and that it is the jury’s recollection of the evidence that controls. See id.
Finally, the misstatement was not so central to the case that it likely affected the outcome. D’Amico’s primary defense was that the October 2001 payment was not made in return for a promise to perform an official act. The jury, however, was not told that D’Amico had promised Gostoves anything in exchange for the pri- or payment. And the mere fact of the prior payment was not particularly probative concerning whether D’Amico had made a specific promise to perform an official act in exchange for the October 2001 payment. Moreover, the jury had before it a tape recording of the October 2001 payment and thus had direct evidence concerning the promises that D’Amico made to Gostoves in exchange for the payment. This direct evidence was almost certainly at the forefront of the jury’s deliberation in light of D’Amico’s defense that, while he accepted the 2001 payment from Gostoves, he did not promise him anything as part of the transaction. In these circumstances, where the focus was not on the fact of payment but rather on the existence vel non of a quid pro quo, it is highly unlikely that the prosecutor’s misstatement concerning evidence about the fact of a prior payment affected the trial’s outcome.
Before leaving this issue, we emphasize that we are not saying that mentioning the amount was a minor mistake by the prosecutor; it created a real risk of infecting to a material degree what was otherwise proper argument. We have found no abuse of discretion in the ruling on the motion for new trial only because the statement was not intentionally erroneous, the argument itself was proper, there was a curative instruction, and the focus of the trial was not on whether there was a $2,500 payment in October 2001 but on whether there was a quid pro quo for the payment.
II. The Government’s Cross-Appeal
The government appeals D’Ami-co’s sentence. The district court calculated the GSR at 31-41 months of imprisonment but sentenced D’Amico to four months’ imprisonment. The court provided the following explanation for the sentence:
The factors that I have considered include: [Tjhat the defendant clearly is an *106 energetic, highly motivated person. He’s been a hustler. He’s worked hard all of his life. He has often had more than one job.... He has accomplished much, both by achieving appointed and elected office. He clearly cares about public service, with the emphasis on the service, and with a large altruistic component. He was in many ways a very good legislator, who served his constituents with dedication, with energy, and with imagination.
I am particularly impressed and credit the letters about his conscientiousness and effective service and on the fact that he returned phone calls, an unusual characteristic among people who don’t have to do that or think they don’t have to do it.
In apparent reference to the collateral consequences of D’Amico’s conviction, viz., its probable effect on his ability to seek public office, practice law, or engage in other professional work in the future, the court further noted that it “should keep in mind the very high price that the defendant has paid for just the conviction even before any sentence is pronounced.”
The government argues that these reasons do not justify a substantial variance from the GSR. In particular, the government contends that the district court overvalued D’Amico’s individual characteristics in determining his sentence.
In fashioning D’Amico’s sentence, the district court followed the procedural approach outlined in
United States v. Jimenez-Beltre,
In reviewing a particular sentence for reasonableness, we stress the need for “a plausible explanation and a defensible overall result.”
Jimenez-Beltre,
Here, the district court concluded that an 88 percent variance from the bottom of the GSR was warranted primarily because of D’Amico’s good works as a city council-lor. Prior to
Booker,
a district court could only depart from the GSR if the defendant’s good works were exceptional.
See Thurston,
While we accept the district court’s characterization of D’Amico as a responsive city councillor who made worthy contributions to Quincy during his time in office, we are left with the firm conviction that the court overvalued these contributions in imposing D’Amico’s sentence. It was D’Amico’s job to respond to the needs of his constituents and to make positive contributions to his community. He was compensated for these efforts, which were essential to D’Amico’s reelection and prospects for other political office.
The Seventh Circuit has held that a district court placed too much emphasis on the charitable efforts of a convicted bank president in substantially reducing his sentence for fraud. United States v. Repking, 467 F.3d 1091, 1095-96 (7th Cir.2006). The court reasoned that affording the bank president so much credit for his charitable endeavors was inappropriate because such endeavors were “entirely consistent with a bank’s business development plan.” Id. at 1096.
We agree with the Seventh Circuit that it is usually not appropriate to excuse a defendant almost entirely from incarceration because he performed acts that, though in society’s interest, also were the defendant’s responsibility to perform and stood to benefit the defendant personally and professionally. Thus, D’Amico’s performance of good works as a city councillor does not support such a substantial variance from the GSR.
This leaves the district court’s view that a large variance from the GSR was appropriate because D’Amico had already suffered substantially from the fact of conviction. In particular, D’Amico argued that the conviction itself would effectively ruin his political career and would impede his ability to pursue a career as a lawyer.
White collar defendants, such as D’Ami-co, often have achieved more tangible successes than other defendants, thereby making it easier for white collar defendants to articulate specific losses stemming from the fact of conviction, such as the loss of a high paying job or a professional license. But other defendants also suffer losses, financial and otherwise, from a conviction. Permitting a substantial variance based on a defendant’s ability to articulate specific collateral losses from a conviction will inevitably lead to sentencing courts treating white collar defendants more leniently (in the relative sense) simply because of their societal status — a result that would be contrary to one of Congress’ primary objectives in enacting the current federal sentencing scheme. See U.S.S.G. ch. 1, pt. A, § 3 (stating that one goal of the Sentencing Commission was to eliminate the pre-guidelines inequity of “punishing economic crime less severely that other apparent equivalent behavior”); Pub.L. No. 107-204, § 905(b)(l)(2) (2002) (instructing the Sentencing Commission to review the guidelines to consider whether they “are sufficient to deter ... [white collar] offense ...”).
We find support for this conclusion in a recent Second Circuit opinion, in which the court rejected a substantial reduction from the GSR on similar grounds.
See United States v. Rattoballi,
In sum, the reasons provided do not support the variance from the GSR awarded in this case. Accordingly, D’Amico must be resentenced.
III. Conclusion
For the reasons stated, the judgment of conviction is affirmed but the sentence is vacated. The case is remanded for further proceedings consistent with this opinion.
So ordered.
Notes
. The count read as follows:
On or about October 15, 2001 at Quincy, in the District of Massachusetts, MICHAEL J. D'AMICO defendant herein, who was then a city counselor for the City of Quincy, did obtain and attempt to obtain property, to wit: two thousand five hundred dollars ($2,500.00) in cash from another with his consent, by means of extortion, that is under the color of official right as a City Counselor (sic), for the purpose of influencing a road construction project in Quincy, and did thereby obstruct and attempt to obstruct and affect commerce and the movement of articles and commodities in commerce.
. In making this ruling, the district court criticized D'Amico for waiting until the eve of trial to file a motion challenging the indictment. The government argues that, in light of the district court's comment, we should rule that D'Amico waived his duplicity challenge. Federal Rule of Civil Procedure 12(e) provides that a defendant waives a defective indictment claim if the claim is made after the deadline for pretrial motions, unless the district court permits the late filing for "good cause.” D'Amico's challenge to the indictment was undoubtedly late, but, because the district court rejected his argument on the merits, we shall reach the merits as well.
See United States v. Huber,
. Courts have recognized additional harms from a duplicitous indictment, including that it may (1) fail to give the defendant adequate notice of the nature of the charges, (2) threaten to subject the defendant to prejudicial evi-dentiary rulings at trial, and (3) produce trial records inadequate to allow a defendant to plead prior convictions or acquittals as a bar to subsequent prosecution for the same offense.
E.g., United States v. Marshall,
. We take no position on whether this interpretation of 8 U.S.C. § 1324(a)(l)(A)(ii) is correct.
. In support of his duplicity argument, D’Am-ico relies primarily on
United States v. Starks,
. The government has not argued that the court’s instruction was "patently incorrect,”
see United States v. Gomes,
. At this point, Gostoves was cooperating with the FBI after he had been indicted for federal tax evasion. The money that Gostoves paid to D'Amico was provided by the FBI.
. The
Griffin
rule does not apply where the jury is presented with two theories and one is
factually
flawed. In such cases, the conviction stands. We assume,
arguendo,
that D'Amico has
made
a legal insufficiency argument to which
Griffin
could apply.
See United States v. Syme,
. D’Amico also challenges a statement by the prosecutor quoting Gostoves as saying to D'Amico, in reference to the October 2001 payoff, that they would do something “like in the past.” Gostoves’ statement to this effect was admitted without restriction, and thus it was proper for the prosecutor to rely on it in her argument.
McKeeve,
. We see nothing in the Supreme Court’s recent decision in
Rita v. United States,
- U.S. -,