*2 fore her public hearing, committee. At the Before EDMONDSON, KRAVITCH and speeches after for and against, bill Judges, Circuit GODBOLD, Senior voted Rogers voting down with against 8-4 Judge. Circuit voting. and Davis meeting After the adjourned, Stewart met with at Davis KRAVITCH, Judge: Circuit request her her office. She first stated Patricia Davis one of Ala- soundly séveral that she never seen had a bill so legislators bama investigated taking defeated told the Ala- $100,000 II—DISCUSSION spent Company had Power
bama
then
$200,000
result. She
ensure that
A. CONTINUANCE
paper with the
piece of
handed Stewart
it and said she
$25,000
figure
written
*3
the indictment
The time between
out of com-
reported
get the coal bill
could
trial
two months:
beginning
the
and
of
respond-
Stewart
for that amount.
mittee
4,
Appellant
1989.
6 to December
October
oblige,
try to
and he left
ed that he would
pre
to
insufficient time
argued that was
impression that Davis
meeting
the
the
with
forty
involving
to
defense to case
pare a
a
and
for herself
payments
expected cash
tapes
of
and 750 wire
fifty hours
audio
(specifically
members
other committee
conversations, the testi
tapped telephone
exchange
in
for favor-
Wright
Rogers)
and
subpoe
thirty
and 300
mony of
witnesses
the bill.
action on
able
appeals the district
naed documents. She
continuance,
denying
order
the
court’s final
1988,
approached the
Stewart
In June
for abuse of discretion
we review
which
activity
Attorney’s
about this
Office
U.S.
in
resulted
appellant must show
and which
by par-
them
agreed
cooperate
with
and
prejudice.
specific substantial
See United
in
and record-
ticipating
future transactions
1503,
F.2d
764
Bergouignan,
v.
States
tape.
ing
and video
Over
them on audio
cert,
Cir.1985),
denied,
(11th
484 U.S.
1508
months,
met sev-
Stewart
the next sixteen
(1988);
1044,
778,
bribe.” Id.
In
interpreting
so
the Hobbs
Act,
gave
the Court
credence to this court’s
(2) The term “extortion”
the ob-
means
in Evans that:
statement
taining
property
another,
from
with
consent,
his
by wrongful
passive acceptance
induced
by pub-
use
of a benefit
force, violence,
of actual or threatened
lic official is sufficient to form the basis
fear,
or
or under color
official
of a
Act violation if the
Hobbs
official
right,
[emphasis
being
pay-
knows
he is
offered the
added].
exchange
specific
ment in
for a
request-
jury
In its
instructions the district court
power.
ed exercise of his official
The
charged
guilty
that for a
jury
verdict the
any specific
official
not take
need
action
was required to find that “the
on
defendant
offering
to induce the
of the benefit.
forth,
or
about
date set
induced
either
Evans,
attempted
(emphasis
origi-
or
to induce John W.
in
910
at 796
F.2d
nal).
part
money”
knowingly
with
and “did so
Evans,
(11th
Cir.1990).
States v.
United
520
single passage in
Appellant claims a
Unit
properly
court
instructed
requires quid pro
re-
Haimowitz
hewing closely to the statute’s
ed
v.
by
focusing
the manner
in
circuit.
quirements
quo
this
po-
Representative
1561,
Davis’ official
Haimowitz,
F.2d
1573
Cir.
725
which
the nec-
provided Stewart with
itself
de
1984) (“there
proof
sition
no
in-
act of
essary inducement. No overt
coupled
promise
with a
Scar
mand was
the four
required
because
ducement
act of official
borough
perform
some
appeals all
appellant
from which
counts
Dozier, 672
grace. See United States
recently
expected
cert,
or
payments for
involved
denied,
531,
(5th Cir.),
459
F.2d
537
behalf of
completed legislative efforts on
256,
74 L.Ed.2d
Further,
act
even if an overt
the coal bill.4
cert,
denied,
(1982)”),
failure to
required,
of inducement
(1984).
L.Ed.2d 504
5.Ct.
error be-
instruct would be harmless
so
quid
Supreme
addressed the
Court
setting up
the initiative
Davis took
cause
v. United
pro quo issue McCormick
de-
arrangement of cash for
votes
—
U.S.-,
States,
points
payments at several
manded new
McCormick,
(1991).
L.Ed.2d 307
journey.
during the bill’s tortuous
*5
Virginia
of
the
House
member of
West
prosecuted under the Hobbs
Quid
Quo
Delegates was
ii.
Pro
extorting payments in connection
Act for
specific
Appellant’s argument
a
reelection
support during his 1984
with his
statutory
quo
required by the
quid pro
is
campaign
legislation
for
to aid unlicensed
right” is
color of
“under
official
language
the
district court instructed
doctors. The
the
potentially distinct from
but
related
specific quid pro quo
jury that
a
argument.
inducement
While
inducement
request
for
Upon
jury’s
the
required.5
the
question of
initiated
the
who
involves
definition, the
on the extortion
clarification
extortion,
is
quid pro quo inquiry
the
repeated its instructions and
district court
property
the link
extorted
between
whether
a
extortion does not include
added that
sufficiently specific.
power
official
political con-
gift
voluntary
a
legitimate
or
case,
to
quid pro
refers
quo
In this
the
is,
tribution,
freely given without
one
money
designated
par
for
the
whether
jury convicted
of
expectation
benefit.6
promises to
Davis.
acts or
act
ticular
occurred,
II, IV,
money,
you
to have
for
if
find that
guilty
VII
verdicts were for counts
4. The
$12,000 payment
performance
a
of
of such acts is misuse
II
a
the
VIII. Count
involved
get
reported
public
accepts the
official
of how to
bill
office. When a
a discussion
the
after
involving
meeting
promise
implicit
treat-
payment
the committee. At the
an
of fair
of
for
out
were,
IV,
recently
ment,
the
any
promise
Davis had
reintroduced
there is
if
such
there
Count
$1,200
bill,
paid
for hotel bills
payment,
her
without the
coal
an
threat that
inherent
a chance the
stated that there was
public
Davis
his discre-
official would exercise
the
regular legislative
pass
would
in the
bill
coal
manner.
tion in
adverse
an
$1,000
a
"token of
Count VII involved
session.
her efforts
Davis
appreciation”
government
after
described
necessary that the
it is not
So
get support
other committee
for the bill from
prom-
or
prove
defendant committed
the
by phone
is,
and called several of them
members
quid pro quo, that
commit a
consid-
ised to
present.
a
Count VIII involved
with Stewart
action in
nature of official
eration in the
$5,000 payment
the bill
for Davis to reintroduce
money not
payment of the
the
return for
lawfully
rejected
approved and
it had been
then
after
pro quo may,
quid
Such a
owed.
committee.
the
course,
forthcoming
or
in an extortion case
be
may
is not
essen-
either event it
an
it
not.
of the crime.”
tial element
district court stated:
5. The
—
McCormick,
at
U.S. at-n.
government prove
necessary that the
"It is not
court).
(quoting
1812 n.
his
case that the
misused
in this
defendant
granted
he
public office in the sense that
language was:
6. The exact
advantage
person
the
or
or
some benefit
right means
of official
doctors,
under color
"Extortion
who al-
persons,
the unlicensed
here
money by
public
obtaining
official
the
Though
money.
unli-
legedly paid
the
him
lawfully
money
was not
obtained
when the
may
gotten
than
have
no more
censed doctors
owing
Of
or to his office.
to him
performance
due and
course,
the defendant’s
their due in
one
duties,
not occur where
receipt
does
extortion
the defendant’s
his official
and the Fourth Circuit Court of Appeals
cial to
guilty
be
of extortion. The cen-
n
Supreme
affirmed.
reversed,
Court
tral inquiry is
public
whether the
officer
however, and stated that when an official
by the use of his or
her
office
receives campaign contributions,
prose-
willfully caused or induced or attempted
cution for Hobbs Act extortion involving
to cause or
person
induce the
give
him
requires
such payments
proof
quid
pro
or her money, whether that money is
quo. Extortion
color
right
under
of official
called a campaign contribution, person-
is made
“only
out
if
payments
are made
gift,
al
a reimbursement for expenses, or
explicit
return for an
promise or under-
for other purposes.
It is in final analy-
taking by the
perform
official to
or not to
sis, the willful use of the power of the
perform an
at-,
official act.” Id.
public office
procure
itself to
the mon-
S.Ct. at 1816. The Court noted that the
ey
procure
payment
of money
—to
jury
instruction
“voluntary campaign
not owed to
official or his
contributions,” quoted
supra n. was er-
office that constitutes the offense.
ror because it stated that “voluntary”
R17-1688. We note that the district court
meant
expectation
free from
of benefit.
quid
stated a
pro quo was not always nec-
By
definition,
reasoned,
the Court
essary,
indicating that sometimes may
trial court was allowing
jury
to convict
be. More importantly, the district court
legitimate campaign contributions,
further instructed
to distinguish
which often involve
expectation
of ben-
extortion
legitimate
from
campaign contri-
Indeed,
efit.7
political
fear
routine
butions:
service to constituents could be the basis
for convictions under the Hobbs Act when
Politicians most often receive and indeed
campaign
linked to
appeared
contributions
actively
campaign
solicit
contributions.
*6
be major
a
to.
concern of the Court in
This activity is commonplace; and as re-
reversing the
of
decision
the Fourth Cir-
case,
lated to this
there is nothing wrong
at-,
cuit.
(such
Id.
the is sometimes persons er referred to as a for similar reasons. The label quid quo, is, pro something that for or given name to payment sig- the while something. specific But a quid pro quo controlling. nificant not is if a Thus is always not necessary for public a offi- public willfully official misuses his or her who a legitimate is by official receives expectation a made the doctors with the that gift voluntary political aor even contribution McCormick’s official action would be influ- enced for their benefit though political may contribution have that and McCormick been payment made in cash in violation local knew that law. made with that Voluntary at-, expectation." freely given is that which is without Id. S.Ct. at 111 expectation jury Court remanded for a new trial because the of benefit." at-, basis, Id. (quoting 111 could S.Ct. at 1812 have convicted McCormick this court) added). (emphasis although given general it is not certain ver- actually dict that although did and so jury 7. "[T]he was told that it could McCor- find dissent any error in maintained the instruc- guilty any mick payments, -, of extortion if tion was Id. harmless. at 111 at S.Ct. contribution, though even a campaign 1817-18. alleged in the indict- acts quences of the take or offering to taking or office interrupt ad- delay, or be to ac- ment would withhold official take or agreeing to commerce,” causing affect “interstate purpose versely wrongful for the tion commerce or money, the flow part to with means inducing person a which or re- or more between two denominated activities that is business money even you may or de- campaign contribution You are instructed ported as states. gift upon or reim- inter- personal requisite effect as a find that the nominated you action if expenses, proved such has been bursement state commerce extor- constitute that the would doubt beyond official find reasonable extortion; is this attempted of the defen- activity tion or or conduct alleged already though the official was into law of true even the enactment dant concerned the action to take or withhold duty pending bound in the Alabama legislative bill question. commonly Representatives in House Bill” “Buy Coal as the known McCormick, the Unlike Id. at 1687-88. sought which, among things, other impression that not left with jury was purchase of preference for the give a political ac- legitimate convict for it could out-of-state coal mined Alabama over implying no instruction tivity. There was foreign or coal. accompanied monetary contributions expectation of a benefit with points appellee As Jury at 4. instructions Act subject to Hobbs “voluntary” thus upon money her out, extorted based Davis implication was the an prosecution. Such by definition a bill potential to affect instruc- in the McCormick primary flaw commerce, though even interstate affected — at-, McCormick, tions. See impact potential passed. never the bill addition, at 1817. at the commerce measured on interstate that misuse case instructed made extortion demand was time when take or taking offering “by or office of the in the assumed success based on ac- or official agreeing to take withhold Far cert, United States tended scheme. See This lan- an offense. tion” constituted Cir.), rell, F.2d “explicit prom- enough to the guage is near denied, per- undertaking by the official or ise (1989); L.Ed.2d 268 *7 act” perform an official or not form 1168, (1st McKenna, 1172 Cir. F.2d 889 say cannot we outlined McCormick Eaves, 877 1989); also United States see jury misled. was Cir.1989) (FBI’s 943, (11th ficti 946 F.2d possibility of project with no tious business Commerce iii. Interstate commerce interstate completion establishes appel find no merit Finally, we cert, denied, jurisdiction), Act Hobbs erred the trial court argument that lant’s 1129, 1077, 107 L.Ed.2d jurisdic Act the Hobbs instruction on its Furthermore, (1990). the statute’s 1035 or at that extortions requirement tional extort as attempt of an definition com interstate extortions affect tempted require is no that there indicates violation government held that merce. We have com on interstate the effect ment that inter only a minimal effect need show time of the completed at the merce be un jurisdiction to sustain commerce state instructed. violation, so was States Act. See United der Hobbs Eaves, F.2d at 877 also See R17-1686. (11th 1500, Alexander, 1503 Cir. F.2d 850 attempt to violated (inchoate offense 946 888 1988), grounds, on other modified There jurisdiction). establishes Hobbs Act charged (1989). court The district F.2d 777 not instruction trial court’s fore the jury: erroneous. prove that necessary to it is not While in- specifically intended the defendant C. SENTENCING commerce, it is interstate terfere with hearing, the sentencing After that the concerning this issue necessary sentenc- the federal under court found conse- prove that the natural government
523 1, ing guidelines, including the Nov. 1989 level of which was enhanced to 26 amendments, appellant had a base offense following upward adjustments: Base Offense Level 10 (vulnerable 3A1.1 3Bl.l(a) 2Cl.l(b)(l) susceptible victim) or § +2 (organizer (more leader) or § § +4 bribe) than one +2 201.1(b)(2) (elected high office) or official § +8 TOTAL LEVEL 26 appellant’s We find challenge to the sec- trict court found the jus- enhancement was 3Bl.l(a) 201.1(b)(1) tion and section en- tified importance because of the of the coal unsupported hancements bill to mining (R18- because Stewart’s constituency 97) and, clearly appellees urge, record appellant shows that was an because Stewart politically “organizer naive activity or leader of a and was criminal new to the politics of the legislature. Appel- participants involved five or more or responds lant only not was Stewart was otherwise no extensive” and because en- susceptible more than any other Hobbs Act simultaneously possible hancements are victim government but also he agent was a plain language under of sections at all times relevant to the convictions. 201.1(b)(1) (2). challenge to the The district court’s application of section enhancement, however, section 3A1.1 presents question 3A1.1 a mixed of law and more substantial and raises an issue that fact, which we review de novo. United has appeals. concerned several courts of v. Long, 935 F.2d 1210-11 portion The relevant of the U.S. (11th Cir.1991); Yount, United States v. Sentencing Guidelines reads: (11th Cir.1992). 960 F.2d The dis- 3A1.1. Vulnerable Victim § findings fact, trict court’s of historical how- If the defendant knew or should have ever, cannot be reversed clearly unless er- known that a victim of the offense was Villali, roneous. United States v. unusually age, physi- (11th vulnerable due to Cir.1991) F.2d (per curiam). condition, cal or mental or that a victim In construing the particularly “otherwise particularly susceptible otherwise susceptible” language 3A1.1, in section conduct, to the criminal increase circumstances, court has held that as well levels. characteristics, as immutable can render a U.S.S.G. 3A1.1. The commentary to this activity victim of criminal unusually vulner section states that the enhancement does Villali, able. United States v. 926 F.2d at apply charged if the already offense 1000; Jones, F.2d United States v. — cert, incorporates the 1097, 1100 Cir.), vulnerable victim factor. denied, *8 comment, 3A1.1, (n. 2). -, U.S.S.G. (1990). See § L.Ed.2d 230 Moree, however, also United States v. 897 F.2d question, The is the cir whether 1329, 1335-36(5th Cir.1990) Stewart, (prerequisite of cumstances of this case rendered enhancing crime cannot be activity, “par factor under the victim of Davis’ criminal 3A1.1). ticularly susceptible” section “un therefore usually vulnerable” to Davis’ criminal ac In this case there was no claim that tivity. appellant victimized someone who was un- usually physical vulnerable due to or men- The determination of circumstantial or tal condition. Here the district court en- susceptibility especially diffi- situational is hanced the sentence it because found that cult when the relevant crime is extortion Stewart, government the union official and perpetrator inherently because the selects informant, particularly perceived “otherwise sus- victims on the of their basis Indeed, ceptible” appellant’s very to advances. The dis- weaknesses.8 essence 3A1.1, enhancement; According language nerability, triggers thus the 8. to the of section perpetrator's government agent perception, does is the not actual vul- fact that Stewart was a daughter, who of Sessions’ capi- to whereabouts party’s efforts in one extortion lies Clearly, party. missing for five months. vulnerability of another had been talize on the par- Davis’ situa- him Thus, grief and fear rendered must ask whether we Sessions’ overtures, than the vulnerable ticularly susceptible made him more to Villali’s tion answering this capitalize extortion victim. attempts normal on Ses- and Villali’s in words of guidance find question, we missing child evinced for his sions’ concern the Fifth Circuit: called for the depravity a level triggers 3A1.1 vulnerability that by The section provided § punishment extra vulnerability an “unusual” contrast, must be concerns By Stewart’s 3A1.1. victims of only in some present which is him vulner- constituency made no more his Otherwise, the de- type of crime. garden than the to Davis’ overtures able likely victim does choice of a fendant’s victim, needs are variety whose extortion of criminal extra measure not show the necessary in- provide enough vital more intends to depravity which 3A1.1 Fur- extortionist. centive for would-be severely punish. corrupt they as ther, attempts Davis’ —as Moree, at 1335. also United 897 F.2d simply capitalize on these needs were—to Cree, Cir. 915 F.2d depravity reached reach the level of did not 1990). Thus, choice of the defendant’s Thus, appli- court’s in the district Villali. depravity such a level of must evince victim in this 3A1.1 enhancement cation of the susceptible to particularly is that the victim error. case was threats.9 the defendant’s in this case treated district court Ill—CONCLUSION victim because as vulnerable and sentence affirm the convictions We con- the coal bill to his importance un- except two-point for the enhancement clearly Although do not find we stituents. the sen- 3A1.1. We vacate der U.S.S.G. § finding that district court’s erroneous the resentencing in ac- tence and remand for great importance coal was of bill opinion. this cordance with feel that constituency, dowe Stewart’s resulting vulnerability from Stewart’s part, AFFIRMED in REVERSED so unusual to the union was responsibility part. REMANDED depravity the level of it manifested contemplated by section 3A1.1.10 EDMONDSON, Judge, Circuit different from qualitatively This case dissenting part: concurring part Villali, supra, in which judg- court’s I affirm the district would victim the vulnerable this court invoked respects. ment in all at- defendant who against enhancement the dis- I Mr. Stewart was—as believe from a Mr. Ses- money tempted to extort particu- found and trict court suggesting that he knew sions concluded— ty larceny extortion victims appellant Because all analysis did not victim. because not affect our govern- vulnerability, degree unlike of inherent affiliation with share a know of Stewart’s victims, during larceny application time. section the relevant of the ment all context of extortion enhancement in the 3A1.1 unlike the inquiry in this case is not where the sus- for situations must be reserved in United inquiry this court undertaken beyond general goes ceptibility victim *9 Jones, supra, held in which this court Thus, susceptibility. exam- degree we must a class were vulnerable tellers as that bank Stewart, by circum- virtue of his ine whether stances, involving in cases under section 3A1.1 victims "particularly susceptible" to extor- distinguished larceny. Jones court bank tion, tellers, by their circum- virtue of as bank larceny general population tellers from stances, larceny. were to location in an area the basis of their victims on access, frequent exposure to their suggestion government’s that Stewart’s all, 10. and, their above members familiarity with political naivete and lack money. large responsibility amounts of for particularly sus- politics him rendered Jones, qualities, the 1100. These F.2d at Representative machinations of held, ceptible to the to lar- bank tellers vulnerable made court merit. by garden Davis is without varie- ceny not shared in a manner susceptible to larly extortion. Mr. Stewart politically and, important, naive more
Mr. Stewart’s constituency— union-worker
many of whom already unemployed—
depended on the health of the Alabama coal
industry for their livelihoods which were in
jeopardy. I do not believe all victims of
extortion means of equally fraud are
vulnerable; although it is true that extor- people
tionists choose who extortionists vulnerable,
believe are vulnerability levels
(even among vulnerable) vary. can
A politically naive local union leader
carrying heavy of responsibility burden
for hard-working his constituents’ liveli-
hood difficult economic times looked like prey to
easy Davis. invoking Then
spectre big opposition businesses’ legislative goals,
Stewart’s capital- Davis
ized on particular Stewart’s vulnerability And,
even more. although I admit that I
do not understand the “depravity” stan- (it useful)
dard seems too vague to be
applied today’s opinion, court I think
Davis’s conduct was depraved enough to punishment.
warrant extra Wattles, Orlando, Fla., Robert C. ap- for ROGERS, al., Elaine et Plaintiffs- pellants. Counter-Defendants-Appellees, O’Neal, Orlando, Fla., Frederic Bennett appellees. WINDMILL POINTE VILLAGE CLUB ASSOCIATION, INC., al., et Defen
dants-Cross-Claim-Plaintiffs-Appel
lants.
No. 91-3993. HATCHETT, Before KRAVITCH Judges, *, Circuit and BROWN Senior Appeals, Court of Judge. Circuit Eleventh Circuit. Aug. PER CURIAM:
AFFIRMED on the basis of the District 17, 1991, September Court Order dated at- Appendix. tached hereto as an *10 * Brown, Bailey Honorable Senior U.S. Circuit tion. Circuit, Judge sitting by designa- for the Sixth