U.S. v. Brock
| Citation | 501 F.3d 762 |
| Decision Date | 06 September 2007 |
| Docket Number | No. 05-6621.,No. 05-6622.,No. 05-6623.,No. 05-6645.,05-6621.,05-6622.,05-6623.,05-6645. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gary Michael BROCK (05-6621); Jerry Giles Brock (05-6623); and Darrin T. Webb (05-6622/6645), Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED: John P. Konvalinka, Grant, Konvalinka & Harrison, Chattanooga, Tennessee, Martin J. Levitt, Levitt & Levitt, Chattanooga, Tennessee, Fielding H. Atchley, Jr., Dietzen & Atchley, Chattanooga, Tennessee, for Appellants. Gary Humble, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: John P. Konvalinka, Matthew D. Brownfield, Grant, Konvalinka & Harrison, Chattanooga, Tennessee, Martin J. Levitt, Levitt & Levitt, Chattanooga, Tennessee, Fielding H. Atchley, Jr., Dietzen & Atchley, Chattanooga, Tennessee, for Appellants. Gary Humble, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.
Before: GILMAN and SUTTON, Circuit Judges; TARNOW, District Judge.*
May the payor of a bribe to a state official conspire with that official to extort property from himself in violation of the Hobbs Act? We hold that he cannot, and we thus reverse the convictions of Michael and Jerry Brock. Darrin Webb's unrelated challenges to his conviction and sentence, by contrast, do not have merit, and we thus affirm both of them.
Michael Brock and Darrin Webb are "best friends" with a long history. The two once operated video poker machines together in Chattanooga, Tennessee. Michael Brock eventually left that business to open Brock Bonding, a bail bond company, which he now runs with his brother Jerry. Webb remained in the video poker business after Michael Brock's departure, and over the years he also developed a reputation as someone who had a way with fire. See JA 139, 642-43 ).
In December 1999, while Webb was working on a poker machine at a local bar, the bar's employees—apparently interested in burning down a rival bar—asked him how to start a chemical fire. Webb explained how to create a "delayed reaction" fire, using Score hair gel, that would leave "no trace." JA 348-49. Despite Webb's assistance, the planned arson never took place.
In May 2001, one of Brock Bonding's clients "skipped town," which as a business matter meant that Brock Bonding would have to pay the bond. To avoid having to make this payment, Jerry Brock approached Scott Simcox, a friend and the supervisory clerk for the criminal division of the county courthouse, who agreed to "make [the problem] go away" by removing the scheduled forfeiture hearing from the court's calendar. JA 362. (Without the prompt of a hearing, as Jerry Brock well knew, the court would never order the Brocks to forfeit the bonds entered on behalf of their clients.) Two days later, Jerry Brock called Simcox and told him to "swing by the office" when he was heading home. There, Jerry Brock gave Simcox a "$100 bill" to thank him for "helping ... out." Id.
For the next two-and-a-half years, Simcox fixed the court date of the bond forfeiture hearing whenever a client of Brock Bonding fled the county—which happened 24 times. Each time, Jerry Brock paid Simcox 10% of the face value of the bond that Brock Bonding would have forfeited.
On September 6, 2003, Webb, who had learned about Simcox from Michael Brock, paid Simcox $1,000 to erase several of his girlfriend's traffic citations.
In early December, officers from the Federal Bureau of Investigation approached Simcox. When they told him that they "knew what [he] was doing," Simcox agreed to cooperate with them by recording his conversations with the Brocks. JA 366.
On December 16, Jerry Brock contacted Simcox about fixing another case. Two days later, Simcox wore a wire to a meeting with him, where Jerry gave Simcox $200 for dealing with two prior cases and where they discussed another case involving a $7,000 bond that might need to be fixed soon.
On February 6, 2004, Simcox wore a wire to another meeting, where Jerry Brock gave Simcox "10[] $100 bills" for "taking care of prior cases." JA 386-87. Jerry asked Simcox to fix the case they had discussed back in December and one other case. Jerry also asked Simcox to help his brother get out of a traffic citation.
On March 8, Simcox met with Jerry Brock at the office of Brock Bonding to discuss additional work that Jerry needed to have done. Michael Brock stepped in and asked if Simcox had taken care of his traffic citation. On March 12, Jerry Brock paid Simcox another $400 for his work.
Even though the Brocks and Webb continued to pay him for his efforts, Simcox stopped fixing cases after the FBI confronted him. In mid-March, Jerry and Michael Brock noticed that one of the supposedly fixed cases kept "popping back up" on the list of upcoming hearings. On March 24, the Brocks shared their concerns with Simcox. JA 405-06. Jerry Brock reiterated his concerns to Simcox on April 13 and gave him a list of cases on the calendar that should have been fixed. And on April 20, Michael Brock again called Simcox to discuss his traffic citation.
On December 15, the government filed parallel indictments against Webb and the Brocks alleging that they had conspired to bribe a public official (Simcox) in violation of the Hobbs Act. 18 U.S.C. § 1951. Webb's indictment also charged him with illegally distributing information about an incendiary device to the employees of a local bar, see 18 U.S.C. § 842(p)(2), and the Brocks' indictment charged them with four counts of mail fraud, see 18 U.S.C. § 1341.
Michael Brock and Webb both retained Fred Hanzelik as counsel. (Jerry Brock maintained separate counsel.) The government wrote Hanzelik a letter seeking to negotiate a plea agreement for Michael Brock, for Webb or for a third client of Hanzelik's, Dean DiFilippo. The letter, among other things, asked if Webb would consider testifying against Michael Brock, asked if Webb would consider testifying against DiFilippo or vice versa and noted that Hanzelik's continued representation of all three individuals might violate the Tennessee Rules of Professional Conduct.
The government filed a motion asking the district court to determine whether Hanzelik's representation of Michael Brock, Webb and DiFilippo was appropriate, after which the district court held an evidentiary hearing. After hearing the testimony of two government witnesses, after observing that the government had filed an intervening indictment alleging that Webb and the Brocks had conspired together to bribe Simcox and after questioning Hanzelik extensively, the district court gave Hanzelik four days to respond to the government's contentions.
Following the hearing, Hanzelik stopped representing DiFilippo. And on February 14, Michael Brock and Webb filed nearly identical affidavits, each stating that he was "unaware of any conflict of interest," that he "heard all of the things discussed in Court ... and [did] not feel that any of those things presented a conflict," but that "[i]f the Court believes there is a conflict of interest in this case," "actual or potential," each "affirmatively waive[d] [the] conflict." JA 183, 186.
On February 15, the district court disqualified Hanzelik from representing both Webb and Michael Brock because the situation was "rife with potential conflicts of interest." JA 195. The court noted that it may "be in the best interest of one of these clients to plead guilty and testify against the other" and that, should they both be found guilty, Hanzelik "may be in a position of contending that one or the other of his clients should receive a mitigating role . . . and thus a lesser sentence than the other." JA 196. And because the waivers did not acknowledge these potential conflicts, the district court found that Brock and Webb did not "clearly comprehend the risks here" and thus did not "know what they [were] waiving." JA 197.
A federal jury convicted Webb of illegally distributing information relating to a destructive device, and he later pleaded guilty to violating the Hobbs Act. After hearing extensive testimony about Webb's "considerable additional criminal activity other than . . . what he was convicted of in this case," JA 659, the district court decided that a sentence within the advisory guidelines range of 27-33 months was not "enough to deter criminal conduct," JA 660, and imposed a 48-month sentence.
Although the court dismissed the mail-fraud charges against the Brocks, the jury convicted the two of conspiring with Simcox to extort money in violation of the Hobbs Act. After considering the advisory guidelines range of 21-27 months along with the other § 3553(a) factors, the court sentenced each of the Brocks to a 21-month prison term.
Mike and Jerry Brock contend that the Hobbs Act does not permit them to be convicted of conspiring to extort their own property. We agree and accordingly reverse their convictions and sentences.
The relevant provisions of the Hobbs Act say:
Interference with commerce by threats or violence (a) 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 so to do, 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 under this title or imprisoned not more than twenty years, or both.
(b) As used in this section—
...
(2) The term "extortion" means 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.
The question is whether extortion, or a...
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