U.S. v. Pattan

• Citation: 931 F.2d 1035
• Decision Date: 10 May 1991
• Docket Number: No. 89-3451,89-3451
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph W. PATTAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1035

931 F.2d 1035

UNITED STATES of America, Plaintiff-Appellee, v. Joseph W. PATTAN, Defendant-Appellant.

No. 89-3451.

United States Court of Appeals Fifth Circuit.

May 10, 1991.

Diana E. Courselle, David W. Gruning, Loyola Law School, New Orleans, La., for defendant-appellant.

Joseph W. Pattan, pro se.

Richard B. Launey, Asst. U.S. Atty., P. Raymond Lamonica, U.S. Atty., Baton Rouge, La., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before WISDOM, JOLLY, and DAVIS, Circuit Judges.

WISDOM, Circuit Judge.

A jury convicted Joseph W. Pattan III of two counts of violating the Hobbs Act and of four counts of committing perjury in his testimony to a federal grand jury. Pattan appeals his conviction, raising several issues. We affirm on all issues, except the imposition of the costs of incarceration under sentencing guideline section 5E1.2(i). We vacate the judgment as to that issue and remand the case to the trial judge for reconsideration of that issue only.

I Factual Background

On October 19, 1988, the Grand Jury for the Middle District of Louisiana charged Pattan with one count each of extortion and attempted extortion under color of official right, in violation of the Hobbs Act, 18 U.S.C. Sec. 1951, ¹ and with four counts of having made false statements to the Grand Jury, in violation of 18 U.S.C. Sec. 1623.

After two initial appearances, on December 6, 1988 and December 12, 1988, at which Pattan was not represented by counsel, Pattan notified the court that he was having difficulty obtaining counsel because he did not have sufficient funds to make the initial payment required by the attorneys with whom he had talked. He requested that the trial court appoint counsel to represent him. A magistrate appointed Robert Collins to represent Pattan on December 14, 1988. Because the court found that Pattan did not qualify as indigent, the court ordered Pattan to pay the fees of his appointed counsel and the costs of his defense.

To cover the costs of investigation for his defense, the court ordered Pattan to deposit certain funds with the court. When Pattan failed to deposit money to cover these costs, the court, on February 24, 1989, vacated its order appointing Collins to represent Pattan. By March 2nd, Pattan had still failed to find counsel willing to accept his defense. The court held a hearing to resolve the representation issue and, with the consent of Pattan, reappointed Collins. The trial court also ordered a one week continuance--a continuance equal in duration to the seven days between February 24th and March 3rd during which Pattan was not represented by counsel.

The trial began on March 20, 1989. At trial, the government established that Pattan was an elected member of the West Baton Rouge Parish police jury, and that the police jury regulated and controlled the operation of bingo within the parish. The government introduced testimony that Stanley Laforet, the owner and operator of Westside Bingo, agreed to pay Pattan four hundred dollars a month, for which Pattan agreed to use his position as a police juror to protect and support Laforet's bingo operations. The government introduced testimony that several payments were made under the terms of the agreement, and that Pattan used his position to support Laforet's bingo operations.

The most telling evidence in the case came from a tape recording made by one John Marshall, a Laforet employee on January 24, 1987. The tape recorded a conversation between Marshall and Pattan at Pattan's home. ² In the recorded conversation, Pattan expressed his disappointment that Laforet had failed to pay the four hundred dollars a month agreed to. When Marshall stated that he had decided to leave the employ of Laforet to open his own bingo halls, Pattan offered Marshall a similar agreement: in return for monthly payments, Pattan would use his position as a police juror to support and protect Marshall's bingo operations.

The tape is replete with assurances by Pattan: "I'll be the one. You can depend on the police jury. And that's what I'll do, I'll do because I'll be dealing with you." When Marshall expressed concern about potential difficulties with the police jury, Pattan assures him that "I am going to be right there with you, you know, when the going gets tough I am going to be there. See what I am saying. You know that. Oh, I am going to be there. You don't have to be worry about that."

Pattan took the stand in his own defense. He acknowledged that he had received payments from Laforet, but testified that some of the payments were gifts, while others were made to repay a loan he had made to Laforet. When confronted with his statements on the tape, Pattan testified that he was merely playing along with Marshall, perhaps with the notion of turning Marshall in for attempted bribery.

The evidence also demonstrated that when asked by the Grand Jury whether he had received any payments from Laforet, or whether he had discussed the possibility of receiving cash payments in return for his support of specific bingo operations, Pattan stated that he could not recall ever accepting any payments from Laforet, or otherwise discussing an agreement to accept payments from bingo operators in return for his support of their operations.

The jury convicted Pattan of all six counts. The trial judge ordered a presentence report prepared with regard to the perjury counts. The presentence report recommended that (1) two levels be added to the base offense level for obstruction of justice, under section 3C1.1 of the sentencing guidelines; (2) three levels be added for the specific offense characteristic of substantial interference with the administration of justice, under section 2J1.3(b)(2); and (3) two levels be added for abusing his position as a police juror to facilitate his perjury, under section 3B1.3. The presentence report recommended that neither a fine, nor the costs of incarceration, be imposed under section 5E1.2, because the imposition of such a financial burden would cause his family undue hardship.

Without objection, the trial judge adopted the recommendations of the presentence report concerning the adjustments to the base sentence level. The trial judge rejected the report's recommendation as to the imposition of the costs of incarceration; instead, he ordered Pattan to pay $1,220 per month to cover the costs of his incarceration.

Pattan appeals arguing that: (1) the Hobbs Act portion of the jury charge constituted plain error; (2) the trial judge improperly interfered with Pattan's Sixth Amendment right to counsel; and (3) the trial judge committed plain error in sentencing Pattan.

II Hobbs Act Instructions

Pattan argues, in his first point, that the instructions given by the district court permitted the jury to convict Pattan for passive acceptance of a bribe. Pattan urges us to adopt the reasoning of the Ninth Circuit in United States v. Aguon, ³ and to hold that a public official cannot be convicted for passive acceptance of a bribe under the Hobbs Act. Pattan urges us to hold that the government must establish that the public official took some action that "induced" the payment.

In its charge, the trial court instructed the jury that the government must establish three elements beyond a reasonable doubt in order to convict Pattan under the Hobbs Act:

First: That the defendant induced the person described in the indictment to part with money or property;

Second: That the defendant did so knowingly and willfully by means of "extortion," as I will define it; and

Third: That the extortionate transaction delayed, interrupted or adversely affected interstate commerce.

The trial court went on to define more specifically the terms "extortion" and "under color of official right".

"Extortion" means the obtaining of property from another, with his consent, induced under color of official right. The mere receiving of a gift does not constitute extortion.

. . . . .

Extortion "under color of official right" is the wrongful taking by a public officer of money or property not due to him or his office, whether or not the taking was accomplished by force, threats, or use of fear. In other words, the wrongful use of otherwise valid official power may convert dutiful action into extortion.

It is the nature of the office itself which provides the necessary inducement taking the place of fear, duress, or threat when a defendant knowingly takes advantage of his office in relation to the payor.

While Pattan originally objected to the jury charge on this issue, arguing for two alternate wordings, ⁴ he withdrew his objection when the trial judge added to the instruction the phrase "[t]he mere receiving of a gift does not constitute extortion." Because Pattan did not object to the charge as given, we review the charge for plain error. ⁵ In the Fifth Circuit, we reverse a conviction, under the plain error standard, "only if the error is so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of judicial proceedings and result in a miscarriage of justice." ⁶

To support their position that only extortion, and not bribery, falls within the ambit of the Hobbs Act, the Ninth Circuit, and commentators point to the plain language of the Act and to its legislative history. ⁷ Those supporting this interpretation of the Hobbs Act argue that there must be some showing that the public officer, in some way, communicated a demand or request for the consensual transfer of property before the officer can be convicted.

Whatever the merits of incorporating the proposed distinction between extortion and passive acceptance of a bribe into the Hobbs Act, ⁸ we see no need to do so given the facts and the standard of review in this case. First, there is no contention in this case that these payments were legitimate campaign contributions, or that Pattan...