United States v. Rashad

• Decision Date: 10 July 2012
• Docket Number: No. 10–10645.,10–10645.
• Citation: 687 F.3d 637
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jibreel A. RASHAD, also known as Vernon Cooks, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

687 F.3d 637

UNITED STATES of America, Plaintiff–Appellee,

v.Jibreel A. RASHAD, also known as Vernon Cooks, Jr., Defendant–Appellant.

No. 10–10645.

United States Court of Appeals,Fifth Circuit.

July 10, 2012.

Leigha Amy Simonton (argued), Susan Cowger, Asst. U.S. Attys., Dallas, TX, for Plaintiff–Appellee.

Victor Joseph Sasso, Jr. (argued)(Court–Appointed), Dallas, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES, Chief Judge, and WIENER and GRAVES, Circuit Judges.

EDITH H. JONES, Chief Judge:

Appellant Jibreel Rashad (“Rashad”) appeals his conviction and sentence for violating the Hobbs Act in a crude pay-to-play scheme practiced by Dallas, Texas officials against low-income housing developers. We reject his contentions concerning sufficiency of the evidence of conspiracy, and his other issues are meritless.

BACKGROUND

Rashad was charged in one count of a 31–count indictment against fourteen defendants, including three Dallas public officials, with conspiracy to commit extortion. The trial court granted his motion for severance from the other defendants, and the case against Rashad was tried to a jury for nine days. Following conviction, the court sentenced Rashad to 57 months imprisonment, 12 months of which was to be served concurrently with a 125–month sentence Rashad had received for an unrelated mortgage fraud conviction.

The instant conviction was predicated on Rashad's conspiracy with Ricky Robertson (“Robertson”), a business partner; D'Angelo Lee (“Lee”), a Dallas City Plan and Zoning Commissioner; Donald Hill (“Hill”), a Dallas City Councilman; and Terri Hodge (“Hodge”), a state representative, among others, to extort money and favorable contracts from real estate developer James R. “Bill” Fisher (“Fisher”). Rashad and Robertson conspired with Lee and Hill in an attempt to force Fisher to hire Rashad's company, RA–MILL, to perform construction work on Fisher's company's proposed low-income housing projects in South Dallas.

Hill's and Lee's extortionate demands of Fisher were not, however, limited to a single incident. In 2004 and 2005, Fisher and Brian Potashnik (“Potashnik”) were competing for approval from the Dallas City Council and Plan Commission to build tax-advantaged affordable housing development projects. In the summer of 2004, Fisher believed he had “unwavering” support from Councilman Hill, and as a result, invested approximately a half million dollars each in the initial stages of three projects. Fisher's company was on a limited budget and would not have invested in the development projects without secure political support.

Despite Hill's initial assurances, in August, Darren Reagan (“Reagan”), president and CEO of the Black State Employees Association of Texas (“BSEAT”), requested that the City Council place a six-month moratorium on all new affordable housing developments in South Dallas. This delay would have proved disastrous to Fisher's development project and would have spelled ruin for his company's finances. In reality, BSEAT was a sham organization whose main purpose was to raise money for its sole three members. Councilman Hill instructed Fisher to meet with Reagan to deflect BSEAT's opposition to his project. Fisher later agreed to pay BSEAT $100,000 as a “consultant” in one of the projects.

Soon after this episode, Fisher was contacted by Lee and asked to help pay $5,000 in support of a young man's college tuition. Fisher attempted to ascertain if the young man in question was, in fact, the relative of any City of Dallas employee, but could not get an adequate answer. Fisher did not pay the requested money. Fisher later learned that the young man was actually related to either Lee or Hill.

It was also around this time that Fisher began negotiating with Rashad and his business partner, Robertson, for RA–MILL to perform concrete sub-contracting on one of Fisher's projects. Fisher understood that Lee might be a partner in their business, and that Lee wanted Fisher to hire RA–MILL, but was concerned about their lack of construction expertise and experience.

Fisher signed a contract with Reagan in desperation when he learned that Hill might oppose his projects. Nevertheless, on October 27, Hill moved to deny tax credit financing for one of Fisher's development projects and the Council postponed the critical vote. Hill instead moved, and Council agreed, to approve financing for Potashnik's competing developments. (Seven days before the vote, Potashnik had agreed to pay Hill's mistress, Sheila Farrington, $175,000 in “consulting fees.”)

Shortly thereafter, Lee contacted Potashnik and Fisher and requested contributions for Hill's birthday party, which was in reality a fundraiser. Potashnik agreed to contribute $3,000. Lee requested that Fisher donate $7,500, which Fisher declined to do. Lee left a voicemail for Fisher, pressuring him to contribute and telling Fisher that his deal was “going to be held over two weeks,” a statement Fisher took as a threat. Lee's threat became reality when the Plan Commission postponed a vote on zoning one of Fisher's projects on November 4.

At about this same time, Reagan told Fisher that his Pecan Grove housing project was not likely to be approved by the City Council and that he needed to sign another contract with BSEAT in order to gain political support. On the day of the City Council vote, Fisher and Reagan signed a consulting contract for $100,000 in the City Hall parking lot. Reagan walked the document into City Hall. Later that day, Hill moved to approve Fisher's housing project.

At this point, Fisher concluded that Dallas officials, Lee and Hill in particular, were selling their votes for money. He knew he would not be able to stay in business without Council approval and he would not pay for votes. In his words, it “wasn't a level playing field.” Motivated by his deep concerns, Fisher and his attorney met with the FBI to discuss his situation. After a second meeting with the FBI, Fisher agreed to cooperate in an investigation of potential corruption at City Hall by recording his interactions with Lee, Hill and others. Fisher began by calling Lee to apologize for not having agreed to Lee's earlier demands.

In December, Lee instructed Robertson and Rashad to meet with Fisher to discuss hiring their company, RA–MILL, as a subcontractor on one of Fisher's projects. Lee insisted to them that he expected Fisher to “keep [his] agreement with these guys ... and do what he said he was gonna do in that project so [Lee] can push” Fisher's housing deal. During the meeting, which Fisher recorded for the FBI, Rashad and Robertson explicitly told Fisher that if he hired them for the housing development, Lee would vote in favor of the project. During this meeting, Rashad and Robertson admitted to Fisher that Lee was a secret partner in RA–MILL and would “get taken care of from the contract.” A couple of weeks after this meeting, Fisher received a voicemail message from Rashad telling him that he was doing what was required for Lee's support. Lee then voted for Fisher's zoning proposal.

In late December and early January 2005, Rashad sent contracts to Fisher that demanded a 10% up-front payment. Fisher balked at this request and complained to Rashad that a 1% up-front payment was customary. Rashad responded that Lee wanted these contracts signed as a way to memorialize their agreement before the upcoming zoning vote. During this meeting, Rashad again referred to the fact that Lee was a “partner” in their business and reiterated that if Fisher hired RA–MILL for the housing development, Lee and Hill would vote in favor of the project.

Over the next few weeks, Fisher was pressured by Lee, Rashad, and Robertson to finalize his agreement with RA–MILL. At one point, Reagan interjected himself into the deal and he and Lee created a $180,000 invoice from RA–MILL, which was given to Fisher. When Fisher expressed continued hesitation with the arrangement and declined to pay, Hill postponed the vote on the housing project in order to gain more leverage over Fisher. After the postponement, Rashad demanded payment of $80,000 and indicated that Fisher's project would not pass if payment was not made.

In the ensuing months, Lee pushed Rashad and Robertson (and RA–MILL) out of the deal, while Reagan moved in again asserting demands for payment to BSEAT. Fisher ultimately paid $22,500 to BSEAT, nearly half of which found its way to Hill via delivery in a church parking lot.

In June, the FBI executed 25 search warrants resulting from this investigation. In the ensuing trial of the original defendants, Hill, Lee, Reagan and Robertson were convicted of charges relating to the extortion of Fisher. Rashad, as noted, was convicted in his severed trial.

Rashad appeals the conviction on a number of grounds, including insufficient evidence, plain errors during the government's closing argument, and that the Hobbs Act is unconstitutionally overbroad and vague.¹ He also appeals his sentence.

DISCUSSION

I. Sufficiency of the Evidence

Rashad contends that there was insufficient evidence to support his conviction under the Hobbs Act for conspiracy to obstruct, delay or affect commerce by extortion. Extortion is defined 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.” 18 U.S.C. § 1951(a) and (b)(2). “Fear of economic loss” may underlie extortion in this context, United States v. Edwards, 303 F.3d 606, 636 (5th Cir.2002), as does action “under color of official right.” Rashad's jury was instructed on both theories of extortion. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. Cavazos v. Smith, ––– U.S. ––––, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011). The facts supporting...