U.S. v. Box

• Decision Date: 11 April 1995
• Docket Number: No. 93-1674,93-1674
• Citation: 50 F.3d 345
• Parties: 41 Fed. R. Evid. Serv. 1289 UNITED STATES of America, Plaintiff-Appellee, v. David Lowayne BOX, John Byron Yarbrough, and Leroy Eugene Burch, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 345

50 F.3d 345

41 Fed. R. Evid. Serv. 1289

UNITED STATES of America, Plaintiff-Appellee, v. David Lowayne BOX, John Byron Yarbrough, and Leroy Eugene Burch, Defendants-Appellants.

No. 93-1674.

United States Court of Appeals Fifth Circuit.

April 11, 1995.

Gerhard Kleinschmidt (court appointed), Ft. Worth, TX, for Box.

Allan K. Butcher (court appointed), Fort Worth, TX and David Richards (for argument only), Arlington, TX, for Yarbrough.

Davis McCown (court appointed), Ft. Worth, TX, for Burch.

Delonia A. Watson, Asst. U.S. Atty., Richard H. Stephens, U.S. Atty., Frank D. Able, and Ronald C.H. Eddins, Asst. U.S. Attys., Ft. Worth, TX, for appellee.

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

Before REYNALDO G. GARZA, DeMOSS and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

David Lowayne Box, a bail bondsman, Leroy Eugene Burch, former Sheriff of Wise County, and John Byron Yarbrough, former Chief Deputy Sheriff, were convicted of one count of conspiracy to interfere with interstate commerce by extortion and various substantive counts of extortion, all in violation of the Hobbs Act. The offense conduct included a scheme designed to extort money (through bonds and fines) from travelers arrested at a roadside park in exchange for promises that the charges, usually public lewdness or indecent exposure, would be dropped or reduced. The roadside park was known to be the location of a significant amount of homosexual activity. The offense conduct also included a scheme to extort money from drug dealers in the guise of a legitimate forfeiture proceeding. Additionally, Box was convicted of two counts of making false tax returns.

Box, Yarbrough, and Burch challenge their convictions, claiming various grounds for reversal. Box also challenges the court's application of the sentencing guidelines. We find that three of the substantive convictions for extortion involving the arrests at the roadside park must be reversed because there was insufficient evidence to show that the offense conduct affected interstate commerce. Otherwise, we affirm the conspiracy convictions and remaining substantive counts. Additionally, we find that the district court erred in applying the vulnerable victim enhancement to Box's sentence, and thus, vacate and remand his sentence for further proceedings.

I. PROCEDURAL HISTORY

A grand jury charged Box, Yarbrough, and Burch in an eleven-count indictment as follows: ¹ count 1 charged all three appellants with conspiracy to interfere with interstate commerce by extortion in violation of 18 U.S.C. Sec. 1951 (the Hobbs Act); counts 2 through 9 charged all three appellants with various substantive violations of 18 U.S.C. Sec. 1951, specifically, interference with commerce by extortion; ² and counts 10 and 11 charged Box with making and subscribing to false individual income tax returns for 1987 and 1988 in violation of 26 U.S.C. Sec. 7206(1).

The three appellants were tried together before a jury. The district court directed a verdict of acquittal on count 6 as to all the defendants. ³ Box was convicted of the conspiracy count, seven counts of extortion (counts 2, 3, 4, 5, 7, 8, and 9) and two counts of filing a false income tax return (counts 10 and 11). Yarbrough was found guilty of the conspiracy count and six counts of extortion (counts 2, 3, 4, 5, 7, and 8). Yarbrough was acquitted of the extortion offense in count 9. Burch was convicted of the conspiracy count and one count of extortion in count 8. Burch was acquitted of the remaining six counts of extortion, all of which involved the arrests at the roadside park.

II. SUFFICIENCY OF EVIDENCE

The appellants contend that their conspiracy and substantive convictions for extortion in violation of the Hobbs Act (18 U.S.C. Sec. 1951) were not supported by sufficient evidence. Section 1951(a) provides that:

Whoever 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 to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

The statute defines "extortion" as "the obtaining of property from another, with his consent, induced by wrongful use of actual or We review a challenge to the sufficiency of the evidence to determine whether a reasonable trier of fact could have found that the evidence established the defendant's guilt beyond a reasonable doubt. United States v. Stephens, 964 F.2d 424, 427 & n. 8 (5th Cir.1992). "A conviction under the Hobbs Act may be sustained by a finding that a public official has taken a fee, unlawfully, under color of his public office, in return for performance or nonperformance of an official act." United States v. Wright, 797 F.2d 245, 250 (5th Cir.1986), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987). "To convict for criminal conspiracy under 18 U.S.C. Sec. 1951, the jury must find an agreement between two or more persons to commit a crime, and an overt act by one of the conspirators to further the conspiracy." Stephens, 964 F.2d at 427.

                threatened force, violence, or fear, or under color of official right."   Section 1951(b)(2)
                

A. INSUFFICIENT EVIDENCE TO SHOW MONEY NOT DUE THE OFFICE

The appellants argue that there was insufficient evidence to show that the $20,000 in forfeited drug proceeds was property not due the office. The pertinent part of the Hobbs Act "requires of the public official that he obtain 'property from another, with his consent, ... under color of official right.' " Evans v. United States, 504 U.S. 255, 265, 112 S.Ct. 1881, 1888, 119 L.Ed.2d 57 (1992) (quoting Sec. 1951) (ellipsis in opinion). Construing that statute, the Supreme Court held "that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." ⁴

The appellants claim that the forfeiture was legal under Texas law, and therefore, the government failed to prove that the Sheriff's Department was not entitled to the money. The government, relying on McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), responds that whether the forfeiture was legal is not relevant. In McCormick, the defendant, an official, had been convicted of extortion under the Hobbs Act. He claimed that the monies he received were legitimate campaign contributions. The Court of Appeals had affirmed, rejecting McCormick's contention that conviction of an official under the Hobbs Act always requires proof of a quid pro quo. That court concluded that the statute did not require such proof when the parties had never intended the money to be legitimate campaign contributions. The Supreme Court reversed, holding that a quid pro quo is necessary for conviction under the Hobbs Act when an official receives a campaign contribution, regardless whether it is a legitimate campaign contribution.

Accordingly, in the case at bar, the government argues by analogy that simply because the transaction was "camouflaged" as a legitimate forfeiture does not immunize the defendants from prosecution. The forfeiture, the government argues, was orchestrated to hide its true character as an illegal quid pro quo transaction constituting extortion. On the facts of this case, we find the government's position persuasive.

Viewed in the light most favorable to the government, the evidence showed that, on April 18, 1988, officers of the Wise County Sheriff's Department executed a search warrant at a remotely located house used for the manufacture of amphetamines. Phillip Cox, Derrick Ives, and Paul Gatlin were arrested at the scene. When Cox arrived at the jail, he observed Box standing at a desk. Box took Cox aside and advised that if Cox used him as a bail bondsman, he would inform Cox of some loopholes in the case that would help Cox to obtain dismissal of the charges. At that time, Box did not give any specifics as to the "loopholes." The loophole was a defective search warrant. Deputy Yarbrough had prepared the search warrant which was defective Cox paid Box to obtain bonds for the three men. Box also charged $6,000 in "private investigator's fees" to obtain the information regarding the "loopholes." Subsequently, Box and Cox met several times and discussed a $20,000 "pay off deal" that would result in the dismissal of the charges. Cox, however, was skeptical and concerned that Box was trying to "scam" him. ⁶ Cox wanted to meet with someone who could verify their agreement, and Box told him that he could talk to the Sheriff.

due to inaccurate directions to the house. ⁵

While on his way to meet with Box and the Sheriff, Cox and his companion Kit McManus had car trouble. Cox phoned Box and told him where the car had stopped. Box and the Sheriff arrived at the scene shortly thereafter. Box assured Cox that he did not need to worry because it was not "any big deal." He further stated that the Sheriff had more to lose than Cox did. Cox then entered the vehicle with the Sheriff. The Sheriff also assured Cox that he had nothing to worry about and that "it wasn't the first time that this had happened." Cox told the Sheriff that was enough verification for him. Cox testified that the Sheriff "seemed like the type of person that would be able to do something like that."

Subsequent to that meeting, Box instructed Cox to choose either Kit McManus or Charles Duckworth (two other individuals who had been involved with Cox in the manufacture of amphetamine) to surrender himself to the Wise County Sheriff's Department with $20,000 on hand for a "forfeiture." It was also determined that the person who surrendered himself would pay a bond fee of $15,000 and the charges would be dismissed at...