U.S. v. Vigil

• Decision Date: 29 April 2008
• Docket Number: No. 07-2060.,07-2060.
• Citation: 523 F.3d 1258
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert VIGIL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

523 F.3d 1258

UNITED STATES of America, Plaintiff-Appellee, v. Robert VIGIL, Defendant-Appellant.

No. 07-2060.

United States Court of Appeals, Tenth Circuit.

April 29, 2008.

Laura Fashing, Assistant U.S. Attorney (Larry Gomez, United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Jason Bowles (B.J. Crow of Bowles and Crow; Sam Bregman and Eric Loman of The Bregman Law Firm, on the brief), Albuquerque, NM, for Defendant-Appellant.

Before KELLY, ANDERSON, and MURPHY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Robert Vigil was convicted by a jury of attempted extortion in violation of 18 U.S.C. § 1951. In post-trial proceedings, the district court denied his motions for judgment of acquittal. United States v. Vigil, 506 F.Supp.2d 544 (D.N.M.2007); United States v. Vigil, 478 F.Supp.2d 1285 (D.N.M.2007). He was sentenced to 37 months' imprisonment followed by three years' supervised release. On appeal, Mr. Vigil challenges of the sufficiency of the evidence supporting his conviction. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

Mr. Vigil was the New Mexico State Treasurer from January 2003 to October 2005. George Everage was an employee of the New Mexico State Treasurer's Office ("STO") who proposed to Mr. Vigil a method of raising more income for the office through a securities lending program. Mr. Everage left the STO to bid for a contract to oversee this program as the Securities Lending Oversight Manager ("SLOM"). Mr. Everage created a business entity SECSYS, LLC which submitted a proposal to the STO to act as the SLOM forecasting that based on the banks' proposals as securities lending agents, the income that SECSYS, LLC would receive was $105,450 in gross proceeds. Before Mr. Everage left the STO, Mr. Vigil told him that he had a friend whose wife needed a job and asked him if he would hire her if he received the contract. Mr. Vigil told Mr. Everage that he would have to pay her $500 to $1,000 per month, and that by hiring her he would be helping Mr. Vigil out. Ann Marie Gallegos, Mr. Vigil's Assistant Treasurer, asked Mr. Everage repeatedly if he had met with Samantha Sais to come to an agreement with her. Mr. Everage did not see the need for an employee, but he agreed to meet with Ms. Sais, the wife of Mr. Vigil's friend, thinking she might be a courier and do some clerical work.

On April 29, 2005, Mr. Everage met with Ms. Sais who said that she expected $55,000 per year in compensation which surprised him: "I almost fell out of my chair. It went from $500 to $1,000 a month to $16,000 a year to $55,000 a year." Aplt.App. at 92. Mr. Everage determined during the meeting that Ms. Sais's "knowledge of securities lending was nonexistent," and that hiring her would compromise his business plan. Ms. Sais explained that Mr. Vigil owed her husband, Michael Montoya, for past favors, Mr. Vigil had not been forthcoming, and Mr. Montoya was considering running against Mr. Vigil in the next election.

Following the meeting on May 2, 2005, Mr. Everage called Mr. Vigil who explained that he needed Mr. Everage to hire Ms. Sais as a favor and if he did not, "this deal was not going to go forward, it was going to die." Id. at 98. According to Mr. Everage, Mr. Vigil said that Ms. Sais's skill set was needed in the STO, prompting Mr. Everage to wonder why the STO didn't hire her. Mr. Vigil indicated that the main reason he wanted Mr. Everage to hire her was "to get her off his ass." Id. at 98-99. Previously, Tomasita Gallegos, an STO employee, determined that since most of the information would flow automatically and electronically into the STO's accounting system, it would not take her much time to perform the necessary computer work needed by a SLOM.

Initially, Mr. Everage submitted his proposal to the STO without Ms. Sais. He testified that he did so in part because "it would have put me in a position where I had to subordinate my interests to hers." Id. at 100. Ms. Gallegos called Mr. Everage on behalf of the STO and told him that he would have to resolve things with Ms. Sais and submit her resume with his proposal. Although Mr. Everage believed he would violate the request for proposals ("RFP") by including Ms. Sais as a subcontractor, he submitted her name as a potential subcontractor because he believed he would not get anywhere unless he made an accommodation to Ms. Sais.

By the end of May 2005, the STO sent Mr. Everage the SLOM contract, requesting he sign it, and after he signed and returned the contract, the STO sent him three proposals from securities lending agents for his evaluation. Mr. Everage reviewed the responses and prepared a report evaluating them. On June 10, 2005 Mr. Everage met with Ms. Sais a second time, because of pressure from the STO, and proposed that she receive 40% of his net income. Ms. Sais responded that she wanted 40% of his gross income because Mr. Vigil owed her husband. During the meeting, it became clear to Mr. Everage that Ms. Sais did not want to work for the compensation. Three days later, Mr. Vigil spoke with Mr. Everage by telephone telling him that he offered Ms. Sais 40% of net. Mr. Vigil responded, "No, no just deal with this [Mr. Everage], we can't, we can't deal with net, it can't work." Id. at 151. Mr. Vigil said that Ms. Gallegos was "writing letters I guess to cancel this thing, that's why I called you . . . we're not gonna do this if we don't have uh . . . a way of doing it." Id. at 154-55. Then Mr. Vigil told Mr. Everage to call Ms. Gallegos to "fix it, otherwise, . . . you're gonna put me through two more weeks of this crap." Id. at 156. Mr. Vigil told him that 10% of something was better than 10% of nothing, suggesting that is what he would get if he did not hire Sais.

Following this conversation, Mr. Everage sent a letter to the STO explaining his position. The STO responded that there was no binding contract because Ms. Sais was critical to the contract and that if Mr. Everage did not respond in two weeks with a satisfactory arrangement with Ms. Sais, it would reissue the RFP hoping for more satisfactory responses. In another letter, the STO terminated any contract with Mr. Everage. The STO subsequently offered the SLOM contract to an individual who admittedly knew nothing about securities lending but who agreed to hire Ms. Sais as a condition of receiving the SLOM contract.

On appeal, Mr. Vigil raises six issues: (1) whether his conduct was "wrongful" and not merely hard bargaining or political patronage; (2) whether he "obtained property" from Mr. Everage; (3) whether he used actual or threatened force, violence, or fear; (4) whether the government met the quid pro quo requirement showing that he obtained property "under color of official right;" (5) whether his conduct affected interstate commerce; and (6) whether he took a substantial step toward the commission of extortion.

Discussion

We review the sufficiency of the evidence to support a jury's verdict and the denial of Mr. Vigil's motion for judgment of acquittal de novo. United States v. Burkley, 513 F.3d 1183, 1188, 1190 (10th Cir.2008). We ask whether a reasonable jury could find a defendant guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the government and drawing reasonable inferences therefrom. See id. at 1188.

The Hobbs Act makes unlawful conduct that "in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do." 18 U.S.C. § 1951(a). The Act defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." Id. § 1951(b)(2).

A. Wrongful Conduct

First, Mr. Vigil argues that his conduct was not wrongful as defined by the Hobbs Act but merely hard bargaining or political patronage. The Supreme Court defined the meaning of "wrongful" as used in the Hobbs Act: "`[W]rongful' has meaning in the Act only if it limits the statute's coverage to those instances where the obtaining of the property would itself be `wrongful' because the alleged extortionist has no lawful claim to that property." United States v. Enmons, 410 U.S. 396, 400, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973). Mr. Vigil argues that his conduct was simply hard bargaining and that he was within his rights to require that someone else perform the computer monitoring and reporting. Mr. Vigil is correct that hard bargaining is not wrongful under the Hobbs Act, but his characterization of the facts is far too narrow given our standard of review.

Mr. Vigil demanded that Mr. Everage hire a specific individual, Ms. Sais, to fill the role despite Mr. Everage's conclusion that Ms. Sais's skills were not needed. Mr. Vigil insisted that Mr. Everage pay her the salary she demanded, 40% of his gross income from the contract, leading Mr. Everage to believe it was a condition to receiving the contract. A rational jury could certainly conclude that Mr. Vigil's conduct was "not mere hard bargaining but the exploitation of the fear of economic loss in order to obtain property to which the exploiter is not entitled." Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 523-24 (3d Cir.1998). Mr. Vigil was entitled to evaluate proposals for adequacy on behalf of the state,¹ but he was not entitled to direct the disposition of the income from the contract or specify who was to be hired to perform it. See United States v. Gotti, 459 F.3d 296, 327 (2d Cir. 2006) (recognizing the intangible property rights to make business decisions free of outside pressure and to decide with whom to work). The district court was entirely correct that the jury was free to reject Mr. Vigil's "hard bargaining" theory and conclude that Mr. Vigil was not concerned with negotiating a lower fee to benefit the...