*1 voluntary. compartment a hidden Washington supports dence of deh’s consent was search/arrest”); Khanalizadeh four times consent ‘probable asked cause’ for a search, time Khanalizadeh re- Inocencio, and each States v. 40 F.3d United Although an in the affirmative. sponded (5th Cir.1994) (finding probable 723-24 national, spoke Khanalizadeh and Iranian stopped cause where officers motorist be- well, fairly English as evi- understood following decoy lieved to be car on a transcript.2 As the by denced the video private drug remote road known for its out, the facts here are government points traffic, suspected and where officers a hid- very similar to the facts United States v. compartment den due to evidence of new (5th Cir.1988). Sutton, F.2d 1083 paint higher and a truck bed that was than Sutton, held that the district this Court normal). finding court’s of voluntariness was not clearly the officer did not erroneous where III. defendant, physically restrain the did not reasons, foregoing For the the district decep- and did not use weapons, brandish court’s denial Khanalizadeh’s motion to far as the record tion. Id. at 1085-86. As conviction, shows, suppress, consequently, negative of these elements his none problematic Nor is it present here. are that Khanalizadeh did not know that he AFFIRMED. could refuse consent when all other factors point to the voluntariness of the consent. short,
See at 1085. In all of the circum- id. present
stances here establish that his con- voluntary.
sent was
Likewise, the court did not err district
by whether Khanaliza- failing to consider independent deh’s consent was an act of America, UNITED STATES of will, given Washington’s free initial Plaintiff-Appellee, stop traffic was constitutional. See Jen- son, at 407. MANN, Sam Jimmie Defendant-
Finally, the district court did not err Appellant. whether Khanalizadeh failing to consider Washington when de- revoked his consent No. 05-20545. Durango take the to the mechan- cided to point, ic’s at this shop, Appeals, officers United States Court of vehicle, probable cause to search the Fifth Circuit. given Washington the FBI alert July 2007. likely drugs, carried the incon- vehicle Khanalizadeh, sistent statements card, decoy
incorrect insurance the red
vehicle, now, the of a evidence hidden Estrada,
compartment. See 459 F.3d at (“under circuit, the law of this evi- BGHA, argues videotape ly, argument. that the Khanalizadeh waived this See LLC v. stop, transcript, Tex., the traffic not its should have City City, Universal upon been relied as the best evidence. Khan- (5th Cir.2003). below, object according- alizadeh did not
Kathlyn Snyder (argued), Giannaula Turner, Attys., Asst. James Lee U.S. TX, Houston, for U.S. Houston, TX, County, people Fort Bend (argued), about Hamm
Lance C. Highway passes Mann. Texas. United States
through the center of the town on its northbound route Houston. Kendleton, Jones, Carolyn mayor police hired Mann to serve as commission- WIENER, GARWOOD, Before arrival, Prior to Mann’s Kendleton did er. CLEMENT, Judges. Circuit commissioner, and the police not have CLEMENT, Circuit EDITH BROWN (“KPD”) Department Kendleton Police Judge: Hodges, was headed Clarence who appeals his convic- Sam Jimmie police chief in 1996. Mann been named under color of official extortion tions for commissioner, position police served as fraud, conspiracy to com- right, wire chief, until his termi- superior police crimes. Mann also mit these and other in March nation of 2000. sentencing enhancements challenges by the district ordered restitution A. The warrant scheme following conviction. For the follow- court many municipalities, Kendleton de- Like reasons, his convictions ing we REVERSE issuing rived substantial revenue from *5 all counts and AFFIRM others. on five Texas, however, traffic tickets. In munici- AFFIRM the sentence. We also 5,000 of under are lim- palities inhabitants ited, deriving only exceptions, with some I. AND PROCEEDINGS FACTS thirty percent of their revenue from fines police as commissioner Mann served highway collected from violations of state Kendleton, Texas, city of from 1996 the Teansp. 542.402(b). law. Tex. Code Ann. 2003, grand jury until a indicted sent, Any additional fines must be less one stemming counts from his Mann on 52 dollar, to the state of Texas. Id. Over during police his time as alleged misdeeds time, to the Kendleton became indebted jury guilty A found Mann commissioner. provi- state due to its failure to follow this counts, judge granted trial of all 52 but the By May sion. of Kendleton owed the acquittal as to counts 5 Mann’s motion for $500,000in approximately state unremitted judge The then sentenced Mann to and 6. excess fines and associated court costs. imprisonment months of on count serve 60 through and 63 months In April and counts of members of the Ken- 2, 3, 4, 7, 8, on counts imprisonment of City dleton Council became concerned concurrently. run The all such terms to about this shortfall and sent a letter to ordered, alia, that district court also inter Cook, Ranger requesting Texas Jeff that $390,931.57 in restitution. On pay letter, investigate he the KPD. In the sufficiency appeal, challenges the concern explained councilmembers their underlying all of his convic- evidence being that ticket revenue was collected and tions. He also asserts district state, city causing not forwarded to the calculating in court made numerous errors Specifically, into deeper to fall debt. under the United his offense level States suggested that the KPD was collect- letter Sentencing and that the amount Guidelines ing cash satisfaction of fines. Cook of restitution it ordered was abuse of its investigated allegations by interview- these discretion. ing present former and Kendleton officers reviewing department’s bank rec- following facts were adduced at ords; investigation he concluded from this Mann’s trial. Kendleton is a small town of anomaly general Cook noted second with the were some standard that “there account, that [he] in Kendleton bank was that it being used KPD’s which practices explained officers, seen before.” Cook pay had never of the as used salaries if a did municipalities, person that in other department’s operating well as the costs. fine, traffic the court his or her pay not He stated this was unusual because most and send it to the issue a warrant would municipalities single budget have a serve, money but the police department departments, police covers all so the de- following the issuance of the war- collected partment directly would not be as self- directly municipal go to the rant would financed as Kendleton’s. Once Cook iden- contrast, the KPD issue By court. would scheme,” tified this “theft he alerted an itself, judge’s stamp it with a the warrant FBI agent to his conclusions. it. attempt to collect signature, and then The warrant division of the KPD was money, it an officer collected the Once Davis, charge run by Gerald who was department’s into the deposited would be department, all the warrants issued pro- that this account. Cook stated bank money pay as well as all received to to Kendleton. unique cedure was warrants. Davis would collect fines 8, 2000, executed a search May On Cook depos- bank and also make the concurrent KPD, city’s for the offices and the warrant investigation, spoke he During its. Cook’s in Kendle- single building occupied which operations Davis about the with KPD’s The search recovered the ton. division, warrants and Davis indicated that sheets,” “warrant transaction which department only accepted pay- cash paid depart- to record fines used circumstances, extraordinary ments under of warrants. Cook ment satisfaction policy, had a instituted department and the names on the sheets with compared the Mann, acceptance forbade the whose checks and the names of individuals *6 below, testimony, cash. Davis’s recounted money deposited orders were into the de- to be false. Davis revealed this statement account, and discovered partment’s bank against critical witness Mann at was the names. “big anomaly” between the lists of “very trial where he testified that he was department that the Cook concluded that was like a close” with Mann and Mann cash, checks, accepting payment figure” explained “father to him. Davis orders, money only depositing but began day when a that the scheme one money to the account. checks and orders wire transfer check from a Western Union sheets re- The warrant transaction name.1 arrived at the KPD Davis’s paid the amounts in cash to the flected Mann, who instructed Davis Davis alerted noted numerous department. Cook also so, did and Mann to cash the check. Davis amounts, very as money orders in small money. give told Davis to him the Davis dollar, de- deposited little as one into the he well. Mann told Davis that did this as that in partment’s account. He concluded keep money to and instructed intended make the cash total on the trans- order to switchout.” Davis had to Davis to “do the equal deposited to the amount action sheet meant, explained that and Mann ask what account, department the bank into the name of someone that he was to switch money purchase these small orders would with the name of the sender paid who cash paid it if the amounts to to make look as Mann told Union order. department being deposited. were all Western began that it in 1997 or 1998. when he and Mann but he believed 1. Davis was not sure began stealing department, the cash from the going “legitimate” receipt that the cash was to be for a retain the books in Davis his account,” gave and so Davis once “separate office Davis filled them. jackets and warrant to deposit slips Davis instructed several different offi- Eventually, payments. accompany KPD go cers of the warrants division to destroy Davis to the war- Mann instructed people the homes of who had received accompanied jackets rant some of the warrants and collect from cash them. keep anyone figuring from
payments “to These him give officers would the cash at Thereafter, happened.” out what Davis home, homes, police depart- his their jackets by destroyed burning them ment, Uptown, or Club which was owned barbeque pit at his house and ceased periodically Mann.2 Mann would ask providing supporting paperwork collected, Davis how much cash he had Mann. money Davis would then turn the over to then explained began Davis he Mann, give who would Davis portion some holding money checks and orders until he it keep for himself. Davis testified cash, equivalent collected an amount of activity this continued even after depositing money then the checks and or- police had left the department fol- noting only payments ders the cash but on lowing police his termination as commis- the warrant transaction sheets. Davis sioner—Davis would meet Mann at his purchase money would also the low-value home or club and the would two divide the necessary any up discrep- orders to make cash. Davis testified that on a few occa- ancy between the amount recorded on the sions, kept he all of the cash himself. warrant transaction sheets and the amount occasion, directly paid On one Davis deposited. Davis testified that Mann had officer, Frank, collecting A.J. with the cash things instructed him to do all of these he per had collected an instruction from initially given pur- Davis the cash to Davis, Mann.3 According to Mann ob- money chase orders. him collecting served cash “several times.” typed Davis also testified that Mann Davis reviewed number warrant drawing checks on the KPD account two prepared transaction sheets he and ex- per or three times week. jury in plained process great try detail. He also stated that he “had to B. The COPS scheme councilmembers, city mislead” the de- *7 During Mann’s tenure as police commis- partment’s bookkeepers, anyone with sioner, applied grant Kendleton for a questions from about KPD’s finances. To federally-funded end, Community this he .maintained two sets of Oriented receipt (“COPS”) books, Policing a Services hir- “dummy one of which was book” universal ing program. give receipts application signed from which he would The was those order; Mann, paid by money by who check or top Davis as Kendleton’s law enforce- executive, Jones, destroy would this book once all of its ment and as Kendleton’s receipts top government had been issued. Mann would executive. Mann and Davis, presented 2. According routinely Evidence was at trial that 3. officers re- opened during warrant, several bank accounts collecting ceived a “fee” a for time, deposits and he made into them that coining with the fee out of the collected salary were out of line with his from the KPD. above, amount. In the instance discussed argued money He that the came from the two sought pay- Officer Frank an advance on his owned, receipts local bars he but sales tax check. suggested highly from those bars that this was unlikely. indicating contrary grant to what was stated on the signed a certification also Jones Moreover, appli- application. paid on the Kendleton its provided the information $10,000 form application entry-level just year, true. The per cation was officers grant money it clear that COPS application made much less than the stated. posi- for “new officer could be used explained Waddell the award start funding application requested The tions.” 1, 1998, May date was all so officers police full-time officers in additional for six receiving money had to be hired COPS 1998, in 1997, in three more three more Shortly after that date. after the award applica- one more 2000. The date, City began start of Kendleton entry that the current level tion also stated $4,684 drawing dollars out of the available officer was salary police for a Kendleton money every couple of weeks until COPS $4,440 in $18,500 year, plus benefits. per payments stopped May accepted, and application was grant $213,297, money, 2000. The a total of was Kendleton a program the COPS awarded bank in wired from federal reserve New $318,171 to be used over time to grant of Jersey to Kendleton’s in Texas. bank fund the salaries of six additional partially first annual re- Waddell described the entry-level officers. Mann full-time Kendleton, by port COPS submitted accepting document signed Jones report Mann. The signed also was 1,May acceptance 1998. The award on spent to describe how Kendleton intended repeated proviso document grant money during the COPS allocated be used to hire one or more funds “must report 1998. The contained numerous new, career law enforcement of- additional example, it misrepresentations. For stat- writing .... authorized ficers Unless Badge that the officer No. ed with office, may not grant funds by the COPS allocated, money was whom COPS of an salary to the or benefits applied be Badge newly hired on June No. grantee prior officer hired badge. 801 was Mann’s informa- Similar start date.” award filled in for Bruce Jack- tion was Officers Waddell, a retired former em- Ronald Davis, son, Smith, Darryl Gerald Rene Department of Justice’s Of- ployee of Becerra, and Michael Davis.4 Waddell (“OIG”), tes- Inspector fice of the General analyzed payroll that he in- testified job monitored part that as of his he tified for Kendleton and found that all formation grants. recipients audits of the of COPS payroll prior of these officers were on point, At oversaw audit some Waddell grant. to the issuance of the COPS grant up that turned of Kendleton’s COPS trial, jury At the close of convicted irregularities, causing him to substantial against Specif- him. Mann of all 52 counts investigations turn the matter over to the conspiracy to ically, guilty it found him explained division of the OIG. Waddell law, in violation of 18 U.S.C. violate federal program mon- hiring that COPS universal of interference with eight counts *8 additional ey may only be used to hire (Hobbs by or violence commerce threats officers, entry-level not to fund the salaries extortion), in of 18 U.S.C. Act violation already grant- of officers on the or benefits fraud, 1951, § of wire and 43 counts He testified that at the time payroll. ee’s § trial filed, violation of 18 U.S.C. 1343. Kendleton did application the officers, motion to enter judge granted then Mann’s any health to its pay not benefits receiving COPS by ed the names of the officers 4. were all identified their The officers identify money. managed the oth- that de- Waddell to badge numbers. Waddell testified OIG, using public by provid- er records. spite requests Mann never officers 492 acquittal on two of the the conviction circumstantial rather than judgment
a of is § At direct.” Id. of 18 U.S.C. sen- violations a en- tencing, judge applied two-level review the district court’s interpre- We justice based hancement for obstruction tation application Sentencing and of the trial, testimony gave at on the false Mann Guidelines de novo. United States v. having enhancement for Mann two-level Villanueva, (5th 193, 408 F.3d 202-03 Cir. extortion, more than one an committed 2005). findings We review its factual for eight-level enhancement because Mann clear error. Id. high-level decision-making position, held a and a enhancement because the four-level III. DISCUSSION activity judge criminal was extensive. The Sufficiency A. the evidence rejected challenge also amount of restitution recommended (1) Conspiracy $177,634.57 imposed PSI and restitution of Mann asserts that his conviction for the amount lost to Kendleton from the conspiracy to violate federal law was $213,297 warrant scheme5 and for the supported by not sufficient evidence. “In amount transferred to Kendleton under prove conspiracy pursuant order to to 18 program. the COPS 371, prove U.S.C. Government must challenges sufficiency of the (1) agreement an between two or more evidence to all of his He as convictions. persons pursue objective; an unlawful challenges also the enhancements to his (2) knowledge the defendant’s of the un- sentence and the restitution ordered objective voluntary agreement lawful and court. district (3) join conspiracy; and an overt act by one or more of the members of the II. STANDARD OF REVIEW conspiracy in objective furtherance of the determining “In whether there was suf- United States v. conspiracy.” ficient evidence sustain convic- [the] (5th Cir.2003) Floyd, 343 F.3d tions, decide, viewing we must the evi- (internal omitted). quotation general “[A] dence the inferences therefrom the guilty multiple-object conspir- verdict on a verdict, light most favorable to the wheth- acy charge may stand even if the evidence juror er a could rational have found [the is insufficient to sustain a conviction on guilty beyond defendant] reasonable United charged objects.” one Anderson, doubt.” United States v. Calle, (5th States v. 120 F.3d Cir. (5th. Cir.1999) United 1997). F.3d (citing The evidence to be needs suf- Burton, States v. support ficient to a conviction for one of Payne, Cir.1997); United States Id. charged objects. (5th Cir.1996)). 1273, 1278 “The evidence charged The indictment every hypoth- need not exclude reasonable alia, with conspiring, inter to commit mail wholly esis of innocence be inconsistent fraud. “The conspiracy with three elements of every except guilt, conclusion that of (1) to commit mail jury agreement free to fraud are among is choose rea- (2) between and others commit [Mann] sonable constructions of the evidence.” Burton, 669-70). (3) Id. fraud, the crime of (quoting 126 F.3d at mail an overt “Moreover, our standard of review act committed one of conspirators does *9 not if United change the evidence that in that agreement.” sustains furtherance of jointly Mann and Davis were found liable for this amount.
493 defraud, i.e., (5th to a 381, specific the intent Sneed, quires F.3d 385 63 v. States omitted). (internal Cir.1995) quotation intent to defraud.” Id. knowing conscious conviction, the fraud omitted). a mail (internal “To sustain quotation at 519 (1) a to scheme prove must government (2) the of which involves use
defraud fraud Mann’s wire convictions (3) executing the of purpose for the mails the 43 wire transfers of stemmed from 445 Ingles, v. States United scheme.” Treasury to money from the United States (5th Cir.2006); 18 see also 835 F.3d Testimony at bank account. Kendleton’s test to 1341. The determine U.S.C. that Mann formed trial established mails to caused the a defendant whether grant an to the COPS scheme use reasonably use was is whether the be used including self-enrich improper purpose, intend foreseeable; need not the defendant Powers, v. States ment. See United to used. Id. the mails be to cause Cir.1999) (“An (5th to F.3d intent above, govern As described personal gain of purpose defraud for the at trial ample presented ment evidence requirement the ‘harm’ satisfies to defraud conspired Mann that Davis and statute.”). wire fraud it individ money due to from Kendleton was that sim- Though Mann’s defense he Davis in court. appear failed to uals who understand the rules of keep ply did not him to that Mann instructed testified to in order to hide some and thus had no program, of books intent two sets COPS jackets money and to burn the warrant defraud, he indi- application submitted Fur payments. with certain associated intended to new cated that Kendleton hire many of the ther, testified Davis money. Because the COPS officers with mail, by money orders arrived checks and in- any new officers and he never hired receipts mail back and Davis would increase salaries money to stead used ordinary individuals, part of which was already on the of officers and benefits It processed. warrants were way which that he infer payroll, jury could reasonably foreseeable was thus he submitted the when intent to defraud pur used for the that the mails would be of the wires further- application. Use the time it executing the scheme at pose of was demonstrated ance of the scheme thus suffi find that was concocted. We This use the transfers themselves. supports conviction cient evidence Mann, though he reasonably foreseeable to violate federal law. for conspiracy ac- establishing the bank had no role commonly paid count, money is (2) Wire fraud means of wire long over distances asserts that his convictions See, v. Rich- e.g., United States transfer. by suffi supported not for wire fraud were (5th Cir.2000), ards, 177, 207-08 (1) fraud “Wire cient evidence. is by United grounds on other overruled to de of a scheme artifice formation 625, 631, Cotton, 535 U.S. States v. (2) further fraud, the wires in use of (2002). 152 L.Ed.2d S.Ct. United States ance of the scheme.” evidence convict Cir.2006). jury had sufficient Brown, counts.6 Mann on these re- of the wire-fraud statute “Violation evi- jury had sufficient that the jury not we conclude argues could also 6. Mann abetting wire aiding him on commission of him on have dence convict convicted fraud, charge fraud, argument. under an alternative wire we not reach this need Because 10 to 43 of indictment. counts *10 494 n
(S)
commerce,
Hobbs Act convictions
by robbery or extortion.” 18
1951(a).
§
U.S.C.
The term “commerce”
asserts that
his convictions
means,
alia,
as defined
the statute
inter
Act,
1951,
§
under
Hobbs
18 U.S.C.
“all commerce
any point
between
in a
supported
were not
sufficient evidence
State, Territory, Possession, or the Dis-
government
because the
failed
prove
trict of
any point
Columbia and
outside
alleged
that his
acts interfered with inter
1951(b)(3).
thereof.” Id.
A Hobbs Act
commerce,
required
state
which is a
ele
prosecution requires
government
ment for conviction under the Hobbs Act.
prove
committed,
the defendant
argument
point
this
is not
attempted
commit,
or conspired to
a rob-
perfectly briefed.
regard
With
to each of
bery or act of extortion that caused an
convictions,
the Hobbs Act
he offers a
interference with interstate
commerce.
noting
sentence
little evidence was
Robinson,
1205,
United States v.
119 F.3d
presented about
origins
or destinations
(5th Cir.1997).
instance,
In this
suffi-
of the ticketed travelers or the effect that
cient evidence must indicate that each al-
ticketing them had on interstate
com-
leged
(i.e.,
violation of the
Act
Hobbs
each
alone,
merce. Standing
perfunctory
these
driver who
pulled
over and ultimately
arguments
probably
would
be insufficient
extorted)
resulted in some interference
preserve
the issue for review. See with interstate
commerce. See United
Green,
United States v.
964 F.2d
Diaz,
(11th
States v.
(5th Cir.1992). However, Mann also chal- Cir.2001) (“Unlike
conspiracy
charged
lenges whether his convictions under the
Act,
under the
only
Hobbs
which
requires
Act
Hobbs
amounted to an unconstitution-
proof that defendants’ scheme would have
application
al
of the Commerce
In
Clause.
commerce,
affected interstate
a substan-
issue,
his discussion of that
spe-
he refers
tive Hobbs Act violation requires an actual
cifically
“jurisdictional
element” of
commerce.”).
effect on interstate
the Hobbs Act and cites United States v.
This circuit’s caselaw is consistent on
(5th
Box,
Cir.1995),
but no proved threat or force need be when though experiences their sup- were used to public defendant is a officer. United port portion acts conspiracy overt of the Westmoreland, States v. charge against Mann. (5th Cir.1988). Brummett, v. tion.” United States Congress’s pow- lie outside right would Cir.2003). (5th A This Clause. F.3d district the Commerce ers under holding directly contradicts the of what constitutes argument court’s determination and is thus una- Box, supra, discussed reviewed for clear er- conduct is relevant vailing. Solis, ror. United States Cir.2002). sentencing Challenges to C. con we have reversed his While the 1998 under was sentenced acts, of the extortionate for several victions Sentencing Guidelines. version remove those acts from this does not *13 of- Mann base assigned court a district “A conduct. universe of relevant district history a of 10 and criminal level fense non-adjudicated of may court consider Mann’s I. It then enhanced category of (offenses for which the defendant fenses to four different pursuant level offense convicted) charged nor has neither been adjust- Mann’s guidelines. of the sections conviction, the offense of that occur after guide- a yielding level was ed offense ‘relevant conduct’ provided they constitute imprison- of to months range line of 63 78 Brummett, § 355 under U.S.S.G. 1B1.3.” Mann sentenced The district court ment. extortions of the non- F.3d at 344. The conspir- imprisonment 60 months (counts travelers, proven by 1 and charges interstate which were wire fraud acy and 52) imprison- evidence, and 63 months as through of the as well preponderance 10 a through through 2 4 and 7 counts ment on overall testimony of Davis as to the concurrently. The to be served terms extort, support sufficient to scheme of imposed court also restitution district participated in more finding a Mann $390,931.57. challenges the sentenc- act. The district than one extortionate de- and the restitution ing enhancements applying this enhance court did not err termination. ment.
(1)
under
U.S.S.G.
Enhancement
(2)
U.S.S.G.
under
Enhancement
2Cl.l(b)(l)
§
201.1(b)(2)(B)
§
increased
court
The district
applied
court
The district
it
by
level
two because
Mann’s offense
the “of
eight-level enhancement
more
offenses involved
Mann’s
found that
purpose
for the
payment
a
fense involved
evi
upon than
extortion “based
one
any
holding
...
official
influencing
of
201.1(b)(1)
§
trial.”
U.S.S.G.
dence at
See
po
decision-making or sensitive
high-level
(“If
than one
more
offense involved
2Cl.l(b)(2)(B).
§
sition.” See U.S.S.G.
levels.”).
extortion,
increase
bribe or
of
police commissioner
as
position
evidence
that because the
Mann contends
holding
an “official
him
the KPD made
convictions, this en
support these
did not
po
decision-making or sensitive
high-level
“offense”
was erroneous. The
hancement
201.1(b)(2)(B)
cmt.
n.
Id.
sition.”
201.1(b)(1) includes
into
section
referred
en
purpose
asserts
and all relevant
of conviction
“the offense
who
punish
person
hancement
is to
Conduct)
(Relevant
§ 1B1.3
conduct under
recipi
than the
rather
payment,
makes
or
meaning is specified
a different
unless
support
there is no
payment, but
ent of the
context.”
clear
from the
is otherwise
language
in the
of
position
for this
l(i).
“Relevant
§ 1B1.1 cmt. n.
U.S.S.G.
by case-
it is controverted
guidelines and
part
that are
includes offenses
conduct
Villafranca,
States
law. See United
common
of conduct or
course
the same
Cir.2001) (“The
Guide-
of convic- F.3d
the offense
plan
or
as
scheme
conviction”).
require
line does not
the defendant
instant offense of
Obstruc-
paid money
have
to the decisionmaking
justice
tion of
includes
...
“committing
official; instead,
it merely requires that
perjury” and “providing materially false
a payment
the offense involve
to such an
judge.”
information to a
Id. at cmt. n.
official”)- Further,
the evidence indicated
(f).
4(b),
justice
For an obstruction of
payments
that Mann received extorted
enhancement,
the district court’s factual
purpose
influencing management
his
findings are reviewed for clear error. See
recordkeeping
the KPD’s finances and
Holmes,
United States v.
system.
find that
the district
We
court
(5th Cir.2005).
applying
did not err in
this enhancement.
Mann testified at trial that he did not
know that
grant
COPS
money could not be
(S) Enhancement
under
U.S.S.G.
used to increase the salaries of officers
(a)
§ SB1.1
already
payroll.
on the
Considering the
district
court
enhanced
evidence that Mann deliberately attempted
Mann’s sentence
four levels because it
government
mislead the
into believing
determined that he
“organizer
was an
that he
fact hired new officers with
*14
activity
leader of a criminal
that involved
money,
the
the district
justifiably
court
participants
five or more
or was otherwise
found this statement
perju-
to be false and
3Bl.l(a).
§
extensive.” U.S.S.G.
Further,
rious.
this statement was mate-
scheme,
asserts that his
which involved
rial to
charges
the
of wire fraud because
numerous officers of the KPD who collect
the wire fraud hinged on knowingly using
ed
payments
warrant
passed
and
them
the
grant
COPS
for a
purpose.
forbidden
Davis,
along to Mann through
was not
The district
clearly
court did not
err in
“otherwise
disagree.
extensive.” We
applying the enhancement.
Moreover,
mayor
the
of Kendleton and
(some
city employees
other
were involved
(5) Restitution
innocently) in the scheme to defraud the
The district
court ordered
program.
COPS
The comments to section
$390,931.57
pay
Mann to
in restitution.
3Bl.l(a) make it clear that
the district
legality
We review the
of such awards de
consider,
court could
purposes
for the
of
novo, and if the award is legally permitted
enhancement,
applying the
all of
per
the
we review the amount for
abuse
discre
sons
implicated
carrying out the of
Cothran,
tion. See United States v.
302
fenses, including those who did so unknow
(5th
Cir.2002).
F.3d
288
Restitution
3Bl.l(a)
ingly.
§
See U.S.S.G.
cmt. n. 3.
may
required
be
for
deriving
losses
from
The enhancement
erroneously
was not
ap
scheme,
the
conspiracy,
pattern
or
plied.
offense of conviction. United States v.
Love,
(5th Cir.2005).
(4.)
§
Enhancement under U.S.S.G. SCl.l
When a defendant has been convicted of
The district court applied a
participating
defraud,
in a scheme to
“the
two-level enhancement for obstruction of
district court’s inclusion of all
losses
justice, due to Mann’s various untruthful
caused
the scheme” is appropriate for
during
statements
the investigation and
calculating restitution. United States v.
trial.
See
(providing
U.S.S.G. 3C1.1
for
Cir.1995).
Pepper, a two-level
if
increase
the defendant “will
fully
trial,
At
impeded,
Ridley,
obstructed or
Susan
a financial
attempted
analyst
or
to
FBI,
obstruct or
with
impede, the
administration
testified that Kendleton lost
justice
during
$177,634.57
the course of the investi
due to the actions of Mann and
gation, prosecution, or sentencing of the
during
Davis
the course of their scheme to
of Mann’s
that reverses all but one
outstanding
section
pay
money intended
steal
rever-
identify
Act convictions. As
those
through
Hobbs
Counts
warrants.
$180,506.98
the federal
sals,
I dis-
respectfully
I
because
loss
dissent
total
Waddell, an audi-
program.
(1)
grant
majority’s willingness to
agree
COPS
with
DOJ,
that Kendleton
testified
tor with
challenge
Mann’s
as one of
characterize
$213,297 under
a total of
received
of interstate nexus to
insufficient evidence
was caused
This
grant.
loss
COPS
4,2,
the convictions on Counts
support
deliberate misstatements
Mann’s
(2)
7-9,
majority’s
reliance on
and subse-
application
grant
in the
DOJ
United,
v. Box1 to conclude
States
Mann as-
Though
reports.
quent progress
of an effect
was insufficient evidence
there
for
be held liable
that he should
serts
interstate commerce.2
on
for
the counts
proved amounts
notes,
majority
the defendants in
As the
convicted,
caselaw does
our
he was
which
Box charged
and convicted
with
hold that
We
support
position.
not
against individ-
numerous acts of extortion
its discre-
abuse
court did not
district
abutting
High-
a U.S.
uals at a rest area
of restitu-
amount
determining
tion
The Box
affirmed some con-
way.
panel
tion.
others,
and reversed
based on
victions
in each count
the individual victim
whether
IV. CONCLUSION
purely
intra-
traveling
interstate
reasons,
RE-
we
foregoing
For
extor-
at the time of the defendants’
state
counts
Mann’s convictions
VERSE
convictions were
Specifically, three
tion.
convictions
2,4,7,8, and 9. All other
affirmed,
victim was trav-
one
AFFIRMED.
are
sentence
*15
Oklahoma,
from Texas to
another
eling
in
WIENER,
Judge, concurring
Circuit
traveling from
the victim
Tex-
because
was
in
dissenting
part:
part and
Mexico,
and New
as to Colorado
traveling
the victim was
third because
in all
majority’s opinion
in the
concur
I
III.A.(3)
Three other
to Oklahoma.
from Colorado
except for Section
respects,
—the
have,
it should
1995).
stopping there as
Instead of
Cir.
1.
If good Box were still I could not repeated in the aggregate across the na- my colleagues fault result. But I tion, would have a substantial effect on longer justifi- see reliance on Box as no done, interstate commerce. When is Ever since the Supreme able. Court that, I find the inescapable conclusion if handed down v. Lopez,3 United States we police small town departments and rural applied “aggregation have its doctrine”— sheriff offices all country across the rightly determining so—when whether to take U.S. Highways hostage an act with of extortion under a extor- Hobbs Act tionate schemes charge Mann’s, has a effect and acts like substantial on inter- absolutely state commerce.4 I there read Box as an outlier be a would substantial for its failure to effect on acknowledge apply interstate commerce. We do not aggregation need some determining doctrine Daubert-qualified expert to tes- tify whether the at in support extortions issue there had a government’s posi- substantial effect on interstate commerce. tion or to underpin the obvious answer (This is not meant as a criticism of the interstate commerce would be sub- 3. 514 U.S. 115 S.Ct. 131 L.Ed.2d conspiracy dants' Act Hobbs convictions. It (1995). bearing had no handling on Box’s of the de- fendants’ substantive Hobbs Act convictions. *16 795, Jennings, 4. United States v. Here, 195 F.3d disposition of Mann’s substan- (5th Cir.1999); 799-801 United States v. Rob- tive Hobbs Act dispute. convictions are in inson, (5th Cir.1997). 1214-15 Thus, inap- discussion of Box is Villafranca's posite. panel majority erroneously The invokes Even significantly, more the Villafranca justify United v. States reliance that, Villafranca acknowledges statement pre- both as the law of Lopez. Box this circuit after post-Lopez, applied expan- this court has an (5th Cir.2001). 378 n. 12 In government's sive view of the pow- commerce stated, Villafranca, ”[a]lthough we pre- Box Box, er. In three substantive Hobbs Act con- Supreme dates the watershed Court decision being victions were beyond reversed as Lopez, in United States v. this circuit has reaf- government's power. panel commerce The expansive application firmed the gov- of the majority cannot contend that the Villafranca power ernment’s commerce in the Hobbs Act acknowledging expan- statement this court’s context and related criminal law contexts.” government’s sive treatment commerce (internal Id. at 378 n. 12 citations omitted and power post -Lopez viability reaffirms the of a added). emphasis majority mistakenly government's case that narrowed the com- takes this statement to mean Box is still Moreover, power. merce the Villafranca good however, panel majority, law. The has statement acknowledging expansive appli- our disregarded missed or the context of this government’s power cation of the commerce statement. completely is panel majori- averse to what the First, the ty today court's statement was government's does com- Villafranca —narrow only directed to treatment of the power. Box’s defen- merce aggregation. such stantially affected wholly unavoid- me, is
To this conclusion affirm Mann’s Hobbs all of I would
able: method- applying the after
Act convictions by Lopez.
ology mandated in the alternative that I note closing, consistent with is also
my position acknowledgment in Lo-
Supreme Court’s use of may regulate the Congress
pez commerce of interstate
the channels inju- from immoral and
keeping them free debated that It cannot be
rious uses.6 spanned which has Highway
U.S. Mexi- from
country’s midsection Canada channel of interstate is a
co since independent reason This is an
commerce. majority can I cannot see how
why authori- Congress is without
conclude robbery”— “highway punish
ty interstate malignant use of our
an obvious system.
highway reasons, respectfully I must
For these majority’s reversal from the
dissent 2, 4, and 7-9.
Counts America, STATES
UNITED
Plaintiff-Appellee, PLANCK, Anthony Defendant-
John
Appellant.
No. 05-21040. Appeals,
United States Court
Fifth Circuit.
July
U.S. at
6. 514