U.S. v. Sander, 79-5236
| Decision Date | 07 April 1980 |
| Docket Number | No. 79-5236,79-5236 |
| Citation | 615 F.2d 215 |
| Parties | UNITED STATES of America, Plaintiff/Appellee, v. Danny Bill SANDER, a/k/a Danny Sander, Defendant/Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard D. Esper, El Paso, Tex., for defendant-appellant.
LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before TUTTLE, AINSWORTH and SAM D. JOHNSON, Circuit Judges.
Appellant Danny Bill Sander, a/k/a Danny Sander was convicted of violation of 18 U.S.C. § 1951 (Hobbs Act) by a jury. The indictment charged him with obstruction of Interstate Commerce by extortion.
Appellant Sander complains in this appeal of the sufficiency of the evidence to show the two essential elements of the statute under which he was convicted. First, he claims that the evidence was insufficient to show that what he did had an effect on Interstate Commerce and secondly, that the proof failed to show that he put the alleged victim of the extortion, one Knapp, in fear, either actual or economic. He also complains of the District Court's failure to grant a dismissal of the indictment because of breach of his right to counsel. All of his contentions are without merit and we affirm his conviction.
In order to dispose of his insufficiency of the evidence claims, it is necessary to outline the evidence presented at his trial.
D & B Development, a partnership owned by Richard Arthur Knapp of El Paso, Texas, and his brother Robert Knapp of Englewood, Colorado, acquired a six mile square tract of land on North Franklin Mountain in El Paso County, Texas, for various areas of development. The tract that was to be developed is known as the Tin Mine. Sometime in June of 1978, D & B Development started earth moving operations on this six mile tract of land. In addition to earth moving, D & B built roads and dams and developed subdivisions. D & B intended to construct six communication towers on top of Franklin Mountain, develop land quarries and a landfill, mine for tin, and also intended to build stables and a resort lake. Eventually, they intended to put in 1200 acres of residential area.
In the process of developing this six mile tract of land, D & B Development purchased some $400,000 worth of tractors and equipment from Rust Tractor Company of Albuquerque, New Mexico. Exploration services on the tract were provided by California Exploration Corporation of Laguna Beach, California. A water well on the project was drilled by Agua Drilling Company of Anthony, New Mexico. D & B Development also used a consulting engineer from Boulder, Colorado. Cooper Aerial Survey Company of Tucson, Arizona, made the aerial topography maps for the project. The partnership also used the services of a California attorney on condemnation problems.
When the development started, the land could be used for all the projects contemplated by D & B Development. However, in October of 1978, the land was annexed by the City of El Paso and the six mile tract of land was rezoned for residential purposes only. The rezoning made it virtually impossible for D & B Development to continue its operations and to do what they had intended to do with the land and on which operations they had already spent large sums of money, some "two or three million dollars."
At the time of the annexation D & B Development requested the City Planning Commission to zone the land so as to permit them to continue their operations. The City Planning Commission, however, denied the request and zoned the land for residential purposes only. The only alternative remaining to D & B Development was to apply to the Zoning Board of Adjustment for a two year temporary use permit. The temporary use permit would permit D & B Development to continue their on-going operations despite the restrictive residential zoning given to the tract by the City Planning Commission. Their request for the temporary use permit was to be considered by the Zoning Board of Adjustment on December 11, 1978.
Some ten days before the Zoning Board was to consider the temporary use application, Appellant Sander contacted Richard Arthur Knapp and talked to him about the difficulties that they were encountering with their zoning problem. He offered to contact people on the Zoning Board to take care of the problem if Knapp were interested. Knapp, however, told Sander that he would consider his offer. A few days later, Appellant Sander again called Knapp to see what Knapp had decided. Up to that time Knapp had not taken Appellant's offer seriously. However, the day before the hearing on the temporary use permit, Knapp began seriously considering Appellant's offers of assistance. He wanted to get through to the people that he considered had been "giving him the heat." Richard Arthur Knapp felt that he would not be given fair treatment by the Zoning Board of Adjustment should he not submit to Sander's plan, something that would result in severe financial harm to him. He decided to discuss Sander's offer with his attorney, and agreed with him to contact the legal authorities. Knapp and his attorney met with the authorities and it was agreed that he would place recorded telephone conversations to Appellant Sander. These recorded telephone conversations were later played to the jury during the trial. During one of these telephone conversations, it was agreed that Sander would contact his source and learn how much was required to insure that the permit sought by D & B Development would be granted by the Zoning Board of Adjustment. Appellant Sander told Knapp that the price would be $10,000 and that this would ensure that D & B Development would receive two or three favorable votes from the Zoning Board of Adjustment. Sander informed Knapp that $4,000 would go to someone "higher up," $2,000 would go to each of two additional members, and he, himself, would earn $2,000 which he said he would return to Knapp. In the last recorded telephone conversation, Knapp and Sander confirmed their agreement and Knapp told him to go ahead and that he would supply the $10,000. It is not clear whether or not Appellant Sander was present when the temporary use permit was being discussed, but Knapp did see him at the City Hall the day of the hearing. The vote on the application for the temporary use permit was favorable and D & B Development received the permit to continue operating. Knapp had agreed to pay Sander the money after the favorable vote was entered and he spoke to Sander on the telephone and in person about it. The conversations between Knapp and Sander after the favorable vote were again recorded. During these conversations Appellant Sander informed Knapp that he "may get some grief down the line," if he did not pay the money and that the Zoning Board "could back this thing up through channels" and cause "all kinds of waives and problems."
It was finally agreed that Knapp would leave the $10,000 in a brown envelope at his office for Sander to collect. Knapp obtained the money, $10,000 in $100 bills, from the El Paso Police Department. Sander did come to the office of Knapp and left his office carrying the brown envelope. As Appellant Sander was leaving Knapp's office carrying the brown envelope, he was arrested and he was...
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