U.S. v. Kaplan

Decision Date09 April 1999
Docket NumberNo. 95-4908,95-4908
Citation171 F.3d 1351
Parties12 Fla. L. Weekly Fed. C 728 UNITED STATES of America, Plaintiff-Appellee, v. Barry KAPLAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Bruce A. Zimet, Ft. Lauderdale, FL, for Defendant-Appellant.

Anne Ruth Schultz, Kathleen M. Salyer, Lawrence D. LaVecchio, Adalberto Jordan, U.S. Attys., Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT, Chief Judge, and TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL and MARCUS, Circuit Judges.

EDMONDSON, Circuit Judge:

This controversy arises from defendant's conviction of attempted extortion and conspiracy to commit extortion under the Hobbs Act. We conclude that the government presented sufficient evidence to support the jury's findings for the Hobbs Act violations, and we affirm the convictions.

Background

In 1984 and 1985, Defendant Barry Kaplan, a resident of Miami, Florida, placed several hundred thousand dollars 1 into two Panamanian bank accounts through the aid of a Panamanian lawyer named Pablo Arosemena. Kaplan gave Arosemena power of attorney over the two bank accounts for the ostensible purpose of disguising Kaplan's ownership of the funds and thereby evading taxation in the United States. Between 1984 and 1989, transfers of funds were made 2 from the accounts to different banks located throughout the world. 3

In 1988 or 1989, Kaplan, in financial peril, sought return of the money. But Arosemena refused and allegedly threatened Kaplan. Kaplan then enlisted the help of Mario Fonseca, another Panamanian lawyer, to attempt to recover the money. Fonseca investigated the matter and found that Arosemena had taken money from the accounts. Fonseca testified that Arosemena threatened to report Kaplan's offshore funds to the United States Internal Revenue Service if Kaplan pursued the matter.

After deciding against a civil suit or criminal prosecution against Arosemena in Panama, Kaplan discussed his predicament with Roy Gelber, then a Dade County Circuit Judge. 4 Gelber then contacted Raymond Takiff, a Florida lawyer who had represented General Manuel Noriega, the de facto leader of Panama at the time.

Kaplan, Gelber and Takiff began to discuss the matter in June 1989 and continued to do so until the early part of 1990. Takiff claimed that he could facilitate the retrieval of Kaplan's money through his connections to the Panamanian Defense Force. Takiff reported to Gelber on many occasions, by telephone from various states, that he had been in Panama working on Kaplan's problem. Takiff also told Gelber that he would be utilizing an officer in the Panamanian Defense Force to obtain the funds from Arosemena and that this officer and his cohorts would have to be paid, in Panama, for their efforts. During a taped conversation, 5 Takiff expressed concern that Arosemena could be killed in the process; and Gelber said that he had relayed this information to Kaplan.

Gelber, Takiff and Kaplan met in person in September 1989 to discuss the plan to obtain the money. 6 Takiff told Kaplan that soldiers from the Panamanian Defense Force would be sent to Arosemena's office and that the soldiers would force Arosemena to sign cards for the withdrawal of the money. Takiff warned Kaplan that, although Takiff did not want Arosemena to be injured, Arosemena could be killed. Kaplan was aware that violence would play a part in the transaction and agreed to the details of the plan.

About the expected proceeds, Takiff initially suggested that the funds be transferred by wire. Kaplan at one point suggested that he could go to Panama to pick up the money himself. But ultimately, the coconspirators agreed that Kaplan would accept a check in Florida, payable to a Bahamian lawyer, referenced to an offshore account. Kaplan was advised that expenses, including Takiff's air travel between the United States and Panama in furtherance of the plot, would be deducted by Takiff from the recovered money. Takiff and Gelber were to split evenly 40% to 50% of the net proceeds, with the remaining amount going to Kaplan.

As part of the government's process of investigating, Kaplan was informed (untruthfully) that, pursuant to the plan, soldiers did visit Arosemena and that force was used in an effort to obtain access to the money. The plan, however, was never actually carried out.

Kaplan was indicted for conspiracy to commit extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (Count I), and attempted extortion in violation of the Hobbs Act and the Travel Act, 18 U.S.C. § 1951 and 2 respectively (Count III). 7 The jury returned a verdict finding Kaplan guilty on both counts. 8 Kaplan was sentenced to thirty months incarceration and a $6,000 fine.

Kaplan appealed, arguing, among other things, that the government had failed to present sufficient evidence of an effect on commerce under the Hobbs Act. A panel of this court reversed his convictions. United States v. Kaplan, 133 F.3d 826 (11th Cir.), vacated and reh'g en banc granted, 148 F.3d 1223 (11th Cir.1998). The panel believed that the government must prove an adverse effect on independent, preexisting commerce to satisfy the Hobbs Act. Id. at 829, 831.

We granted the government's petition for rehearing en banc in this Hobbs Act case to decide whether the evidence established the requisite effect on commerce, including whether that effect must be adverse to satisfy the Hobbs Act. 9

Discussion

The Hobbs Act prohibits extortion, and attempts or conspiracies to extort, that "in any way or degree obstruct[ ], delay[ ], or affect[ ] commerce or the movement of any article or commodity in commerce." 18 U.S.C. § 1951(a). 10 "Commerce" is defined in the Act as "all commerce between any point in a state ... and any point outside thereof." 18 U.S.C. § 1951(b)(3). Two elements are essential for a Hobbs Act prosecution: extortion and an effect on commerce. Kaplan, 133 F.3d at 828; § 1951(a). This appeal concentrates on the latter requirement: the effect-on-commerce element. 11

I.

The Supreme Court has explained that the Hobbs Act contemplates full application of Congress's commerce power: the "Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence." Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). And "[w]e have already determined as a matter of law that the impact on commerce does not need to be substantial; all that is required is minimal impact." United States v. Castleberry, 116 F.3d 1384, 1388 (11th Cir.1997); see also United States v. Guerra, 164 F.3d 1358, 1361 (11th Cir.1999) ("[A]n individual defendant's conduct need not substantially affect commerce precisely because the Hobbs Act regulates general conduct--robberies and extortion--which in the aggregate affects commerce substantially.").

The Hobbs Act, by its own terms, encompasses the inchoate offenses of attempt to extort and conspiracy to extort. "Where attempted extortion or conspiracy to extort are charged, the interstate nexus may be demonstrated by evidence of potential impact on interstate commerce, or by evidence of actual, de minimis impact." United States v. Farrell, 877 F.2d 870, 875 (11th Cir.1989) (citations omitted); see also United States v. DiCarlantonio, 870 F.2d 1058, 1061-62 (6th Cir.1989) ("While a substantive Hobbs Act violation requires an actual effect on interstate commerce, a conspiracy charge requires the government to prove only that defendants' scheme would have affected commerce."). So, the government need only show a realistic probability of an effect, or some actual de minimis effect, on commerce to bring the extortion within the reach of the Hobbs Act.

Kaplan contends the government failed to bring forth sufficient evidence that the scheme would have produced an effect on commerce. The main question in this case, then, is whether, viewing the evidence in the light most favorable to the government, sufficient evidence was presented to allow a jury to find Kaplan guilty beyond a reasonable doubt. See Castleberry, 116 F.3d at 1387-88.

The government brought forth evidence that, if Kaplan's scheme had succeeded, commerce would have been affected. The conspiracy required at least one transaction between Florida and Panama 12--the payment of the extortion demand to Kaplan 13--for the conspiracy to be of benefit to the coconspirators. Kaplan sought access to these funds because he had exhausted his personal assets, and the coconspirators were to be paid from the money Kaplan received. So, the jury was entitled to find that the movement of substantial funds from Panama to Florida was the object of the coconspirator's extortion plan. See United States v. Eaves, 877 F.2d 943, 946 (11th Cir.1989) (determining that payment of monies between Georgia and Florida satisfied Hobbs Act's effect-on-commerce element); United States v. Staszcuk, 517 F.2d 53, 56 (7th Cir.1975) (en banc) (affirming conviction where effect on commerce from the extortion would have been the movement of building materials across state lines); see also United States v. Hollis, 725 F.2d 377, 380 (6th Cir.1984) (noting that interstate payment of money from which victim was extorted constituted commerce).

Kaplan argues that the transfer of funds to the United States would constitute a later use of the proceeds of the extortion rather than the extortion itself, 14 which Kaplan says was to occur wholly within Panama. But, given the evidence, the jury did not have to find a clean break between the forceful acts and the movement of funds. For example, the evidence did not demand a finding that there were to be two conspiracies--one to extort and a different one to transfer funds internationally. Instead, the jury could view the planned...

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