691 F.3d 841 (6th Cir. 2012), 10-4076, United States v. Watkins

Docket Nº:10-4076.
Citation:691 F.3d 841
Opinion Judge:COOK, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bernard K. WATKINS, Defendant-Appellant.
Attorney:Jeffrey P. Safford, Cleveland, Ohio, Wendi L. Overmyer, Office of the Federal Public Defender, Akron, Ohio, for Appellant. Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee.
Judge Panel:Before: MERRITT and COOK, Circuit Judges; and COX, District Judge. [*] COOK, J., delivered the opinion of the court, in which COX, D.J., joined and MERRITT, J., joined in part. MERRITT, J. (pp. 854-56), delivered a separate opinion dissenting in part. MERRITT, Circuit Judge, dissenting.
Case Date:August 17, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 841

691 F.3d 841 (6th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bernard K. WATKINS, Defendant-Appellant.

No. 10-4076.

United States Court of Appeals, Sixth Circuit.

August 17, 2012

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ON BRIEF:

Jeffrey P. Safford, Cleveland, Ohio, Wendi L. Overmyer, Office of the Federal Public Defender, Akron, Ohio, for Appellant.

Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: MERRITT and COOK, Circuit Judges; and COX, District Judge. [*]

COOK, J., delivered the opinion of the court, in which COX, D.J., joined and MERRITT, J., joined in part. MERRITT, J. (pp. 854-56), delivered a separate opinion dissenting in part.

OPINION

COOK, Circuit Judge.

Defendant Bernard K. Watkins, an African-American supervisor of security-systems contracts for a school district in Cleveland, Ohio, corruptly solicited and obtained money from a contractor of security cameras. An all-white jury found him guilty of two counts of attempted extortion " under color of official right" in violation of the Hobbs Act, 18 U.S.C. § 1951,1 and one count of bribery in a federally funded program in violation of 18 U.S.C. § 666(a)(1)(B).2 At sentencing, the district court determined a total offense level of 22 after applying (1) a two-level enhancement for obstruction of justice, (2) another two-level enhancement for the bribes exceeding $5,000, and (3) a four-level enhancement for Watkins's high level of decision-making authority. Further, after considering the sentencing factors outlined in 18 U.S.C. § 3553(a), the district court applied an upward variance of 21 months. The district court thus sentenced Watkins to six years' incarceration on each count, to be served concurrently, followed by a three-year term of supervised release. Watkins appeals his conviction and sentence, raising issues relating to the district court's jury instructions, the sufficiency of the evidence, the jury's racial composition, and the reasonableness of the sentence. We affirm.

I. Factual Background

Watkins worked as the Technical Supervisor for Safety and Security for the Cleveland Metropolitan School District. His duties included overseeing security systems contracts within the School District and ensuring that all security equipment, including closed-circuit security cameras and alarms, functioned properly. Lester Fultz supervised Watkins and served as the School District's Chief of Safety and Security. At trial, Fultz testified that Watkins had significant technical expertise when it came to security equipment and that Watkins helped him to assess the various bids of security camera vendors by compiling a list that summarized the best proposals. Relying on Watkins's advice, Fultz awarded a $182,000 annual contract to Vision Security Solutions (" Vision" ), a company then based in Galveston, Texas, for the service and maintenance of the School District's security cameras. Watkins, who was already professionally

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acquainted with Vision's president and owner, Victoria Newsome, became the point person for the contract. Newsome testified that Watkins called her shortly after she received the news, congratulated her, and then stated that " it is customary for the person who brought you the contract to get a finder's fee of two to five percent." Newsome interpreted Watkins's comment to mean that he was asking her for a kickback. Newsome further testified that Watkins called her again after Vision received its first payment from the School District, made the same request, and indicated that Newsome needed " someone on the inside," which Newsome construed as a veiled threat— i.e., a threat that Watkins would sabotage the contract if she declined to pay him.

In late August 2008, Newsome scheduled a trip to Cleveland for a standard customer visit with Watkins. She e-mailed him her travel itinerary and received a one-word reply: " Absolutely$." The inclusion of the dollar sign signaled to Newsome that Watkins expected her to pay him at their meeting. Troubled, Newsome wrote an e-mail to Fultz that included her correspondence with Watkins and stated, " I am concerned about possible improprieties that I need to discuss with you." Newsome thereafter met with Watkins in his office on August 28. She testified that, toward the end of this meeting, she asked Watkins if there was anything else she could do to keep him happy as a customer. Watkins replied, " An envelope."

Newsome spoke with Fultz that evening and recounted to him the details of her interactions with Watkins. Fultz contacted the Cleveland Police Department, and the police contacted the Cleveland office of the FBI. The FBI then spoke with Newsome, who agreed to record her future discussions with Watkins. The first recorded meeting occurred on October 28. Prior to it, the FBI furnished Newsome with $5,000 in cash to give to Watkins. Newsome enclosed the money in an envelope and gave it to Watkins at the meeting, indicating that " 5,000 thank-you's" were inside. Watkins responded by exclaiming that he was " happy" and that he " trust[ed]" Newsome. Toward the end of the meeting, Watkins told Newsome, " Cause I'm happy, you know, customers get unhappy then they start to nitpick the contract and make you jump through hoops and all that." He also stated that " nothing happens anymore unless somebody is scratching somebody's back." Newsome testified that she viewed these comments as demands for additional payment.

The second recorded meeting occurred on December 18. The FBI once again supplied Newsome with money (a lesser sum of $2,000) to give to Watkins. This time, Newsome enclosed the cash in a Christmas card and explained to Watkins that " Christmas is not as happy as [she] would like for it to be" to indicate that the amount was less than the two-to-five percent kickback that Watkins had requested. Newsome then asked Watkins, " Is there something we can do on these proposals or quotes to make the holidays more festive[?]" Watkins responded, " [A]bsolutely." Newsome testified that she viewed Watkins's reply as a request for her to pad Vision Security Solution's invoices so that she could provide him with additional money.

In late January 2009, FBI Special Agents Thomas Levy and Erin Dulaney interviewed Watkins and played him excerpts from the recorded meetings. Watkins became visibly upset and attempted to explain why he had accepted the money, first characterizing it as a " finder's fee" for providing Newsome with potential business opportunities and then as a gift. Special Agent Erin Dulaney told Watkins that,

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gift or otherwise, it was illegal for him to accept money from a contractor that was working for the School District. Watkins's candid response was " [i]t looks bad for me; I'm f* * *ed" and " [y]ou got me."

Watkins testified at trial. Again, he denied ever soliciting the money and continuously characterized both payments as unanticipated compensation for a list of local business contacts that he had agreed to provide to Newsome during their August 28 meeting. He was unable to provide a record of any of these referrals. He characterized the dollar sign in his e-mail to Newsome as a typographical error and his colorful statements to the FBI as admissions not of bribery or extortion but of lawful conduct that his job nonetheless prohibited. Finally, he pointed out that he had willingly cooperated with the FBI in its efforts to ferret out corruption within the School District by providing the names of employees that he thought might have pertinent knowledge. The jury nevertheless returned guilty verdicts on the three counts, and the district court's sentencing hearing followed. Watkins appeals both his conviction and sentence.

II. Discussion

A. Challenge to Hobbs Act Jury Instruction and Related Statements of Law

Watkins asserts that the district court failed to properly instruct the jury on an essential element of the crime of extortion " under color of official right" and compounded its error by permitting the government to introduce misstatements of law through lay testimony and its closing argument. We review disputes regarding jury instructions de novo and a trial court's refusal to provide a requested instruction for abuse of discretion. See United States v. Gunter, 551 F.3d 472, 484 (6th Cir.2009).

Citing United States v. Abbey, 560 F.3d 513 (6th Cir.2009), Watkins argues that, to sustain a conviction under the Hobbs Act, the government needed to prove that he accepted the payments knowing that they were made in exchange for his official acts within the School District. He accurately points out that this quid pro quo language was absent from the district court's jury instruction on the definition of " under color of official right." 3 Abbey makes clear, however, that the quid pro quo element of an extortion claim can be implied and that " [a] public official ... commits extortion ‘ under color of official right’ whenever he knowingly receives a bribe." Id. at 518. We conclude that the jury instructions in this case, when viewed in their entirety, adequately conveyed the necessity of finding that Watkins's actions were knowing and deliberate rather than the result of a mistake or mere inadvertence. See United States v. Frederick, 406 F.3d 754, 761 (6th Cir.2005) (" When jury instructions are claimed to be erroneous, we review the instructions as a whole, in order to determine whether they adequately informed the jury of the relevant considerations and

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provided a basis in law for aiding the jury in reaching its decision." (citing Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 822 (6th Cir.2000))).

Just prior to instructing the jury on the elements of extortion " under color of official right," the district court outlined...

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