914 F.2d 1340 (9th Cir. 1990), 89-10157, United States v. Ward

Docket Nº:89-10157.
Citation:914 F.2d 1340
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jimmie L. WARD, Defendant-Appellant.
Case Date:September 19, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1340

914 F.2d 1340 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Jimmie L. WARD, Defendant-Appellant.

No. 89-10157.

United States Court of Appeals, Ninth Circuit

September 19, 1990

Argued and Submitted May 14, 1990.

As Amended Nov. 6, 1990.

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[Copyrighted Material Omitted]

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Philip H. Pennypacker, Morgan, Allmand & Pennypacker, San Jose, Cal., for defendant-appellant.

Sandra L. Teters, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before CHAMBERS and FLETCHER, Circuit Judges, and KELLEHER, 1 District Judge.

KELLEHER, Senior District Judge:

Jimmie L. Ward appeals from his judgment of conviction and from his sentence of sixty months in custody under the Sentencing Guidelines. A jury found Ward guilty on three counts, and a judgment and commitment order was filed on March 29, 1989. On appeal, Ward raises three issues. First, he argues that the district court gave erroneous jury instructions. Second, he challenges the sufficiency of the evidence to sustain his convictions on the extortion charges. Third, he maintains that the district court erred in its upward departure from the Sentencing Guidelines. We affirm the convictions, but remand to the district court for resentencing.

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On September 9, 1988, a federal grand jury returned an indictment charging Ward with three offenses. Count One charged Ward with falsely representing himself to be an officer of the United States, and under pretense of that office, knowingly attempting an act of extortion. Count Two charged Ward with demanding money by falsely representing himself to be an officer of the United States. Count Three charged the defendant with extortion and attempted extortion affecting interstate commerce.

The victim of these crimes, Vincent Bagala, was the owner of Bagala Transportation, a trucking company that was engaged in interstate commerce. Bagala hired Ward as a driver on July 27, 1988. On August 24, 1988, Bagala Transportation employee John Henricksen received a telephone call from an anonymous caller. The caller asked Henricksen if Jimmie Ward was working for Bagala Transportation. Henricksen responded in the affirmative. The caller inquired whether Henricksen knew that Ward was an undercover agent working for the Department of Transportation. The caller then stated that he (the caller) had been working with Ward in a company which had been busted by Ward for over half a million dollars for "logbook violations."

Henricksen immediately relayed this conversation to Bagala. Shortly thereafter, the defendant telephoned Bagala. Bagala asked Ward if he was an undercover agent for the Department of Transportation; Ward replied in the affirmative. Ward then told Bagala that Bagala Transportation was in violation of several Department of Transportation regulations.

After this conversation between Ward and Bagala, Bagala checked Ward's employment file and found that it was lacking in certain information. At that point, Bagala became scared and started to panic. Bagala contacted someone at the Department of Transportation, who informed him that the Department did not plant undercover agents at trucking companies to discover regulation violations and that Jimmie Ward was not employed by the Department of Transportation or the government. 2

On this same day, Bagala met in his office with Ward face to face. During this meeting, Ward told Bagala that he was in violation of certain regulations, and the fine for each such violation was $10,000. Ward said that he had the authority to "make it as easy on [Bagala] or as bad on [Bagala] as he wanted to make it." Before leaving, Ward inquired of Bagala his ability to pay the fines. Bagala responded that it probably would render him bankrupt.

On August 25, 1988, Bagala was contacted by Bryant Watkins of the FBI. 3 On August 26, 1988, Ward and Bagala spoke over the telephone. This conversation was recorded by the FBI. During this conversation, Ward continued to represent himself as an undercover agent, and he arranged to meet with Bagala later that day.

Ward came to Bagala's office at around 3:00 p.m. that day. During this meeting, which the FBI taped, Ward told Bagala that he was facing about $60,000 in fines, but that he (Ward) would give Bagala a "clean slate" in exchange for $5,000. Bagala gave Ward a check for $5,000. As Ward was leaving the office, Ward turned to Bagala and stated: "My word is gold and like I say, ya know, if it goes any farther than this office we'd both wind up in the federal penitentiary."

FBI Agent Watkins arrested Ward after he left Bagala's office. Ward subsequently was indicted. Ward pleaded not guilty, and maintained his innocence throughout the trial. On January 18, 1989, the jury returned a verdict of guilty on all three counts. The district court imposed a sentence of sixty months in custody, followed by five years of supervised conditional release.

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  1. Jury Instructions

    Ward argues that the district court's instructions to the jury on the extortion counts were erroneous for two reasons. First, the district court failed to instruct the jury on the requisite state of mind. Second, the district court failed to instruct the jury on the inducement element of the crime of extortion. For each of these reasons, the appellant contends that his convictions on Counts One and Three must be reversed.

    The Federal Rules of Criminal Procedure require a party to object to jury instructions before the jury retires to deliberate its verdict. "No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection." Fed.R.Crim.P. 30. Ward did not object to the jury instructions as given. In fact, the court gave the government's and Ward's joint jury instructions. 4

    When the defendant fails to object to the jury instructions at trial, the court reviews the instructions under a plain error standard. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). " 'A plain error is a highly prejudicial error affecting substantial rights.' " Id. (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979)). The reversal of a criminal conviction on the basis of plain error is an exceptional remedy, which the court should invoke "only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." Id. The availability of a better instruction is not a ground for reversal. Id. at 1368.

    1. Failure to Instruct on Mens Rea

    The appellant argues that his convictions on Counts One and Three must be reversed because the district court failed to instruct the jury on the requisite state of mind.

    Ward was charged in Count Three with violating 18 U.S.C. Sec. 1951, commonly known as the Hobbs Act. The indictment specifically read: "JIMMIE L. WARD, defendant herein, did obtain and attempt to obtain a sum of money from Vincent Baggla [sic] by means of extortion and attempted extortion as defined in 18 U.S.C. Sec. 1951(b)(2)...." Section 1951(b)(2) 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." 18 U.S.C. Sec. 1951(b)(2).

    The appellant asserts that the jury must be given an instruction on intent in a Hobbs Act extortion case. The Ninth Circuit has so held:

    "[C]riminal intent must be submitted to the jury in a case charging extortion under the Hobbs Act. 'Willful' or 'corrupt' were the common law terms focusing on and emphasizing the specific intention the extortionist must be shown to have.... The corrupt intention must be proved to prove the crime. The court's failure to give an instruction on a vital element of the crime was plain error. A miscarriage of justice would result if the error was passed over as harmless."

    United States v. Aguon, 851 F.2d 1158, 1168 (9th Cir.1988) (en banc) (Aguon II ) (quoting United States v. Aguon, 813 F.2d 1413, 1419 (9th Cir.1987) (Aguon I )). Thus, the failure to give a mens rea instruction in a Hobbs Act extortion case is plain error; however, this is not an extortion case, but an attempted extortion case.

    Because the indictment charged the defendant in the conjunctive, that is,

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    extortion and attempted extortion, the jury instructions must be examined to determine the crime upon which the jury deliberated. The district court instructed the jury on Count Three by reading the indictment and 18 U.S.C. Sec. 1951. 5 The court then stated the following:

    In order to convict the defendant of attempted extortion as charged in Count III of the indictment, the government does not have to prove that Mr. Bagala actually feared economic loss. However, the government must prove an attempt to instill fear, that is, that the threat made by the defendant was reasonably calculated to instill fear of economic loss in Mr. Bagala.

    A person may be guilty of an attempt for deliberately doing some act to try to commit an extortion even though no extortion is in fact carried out. An attempt is more than mere planning or preparation. The evidence must show that the defendant took such a substantial step to indicate a firm intent to commit the crime.

    (Emphasis added). Thus, the court limited the instruction to the crime of attempted extortion.

    The crime of attempt consists of two...

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