Posted by: birdsongslaw | February 18, 2009

The Extortion and Bribery Cases

The following  3 excerpted cases, EDWARDS, EVANS, and WILKERSON are posted herewith for use by Birdsong’s White Collar Crime students DURING WEEK 7 study of Extortion and Bribery.

U.S. v. Edwards
303 F.3d 606
C.A.5 (La.),2002.

BENAVIDES, Circuit Judge:

After a long, complex trial, the former governor of Louisiana, his son, and several of his associates were convicted for their roles in various schemes to make money from Louisiana’s riverboat gambling license process by exploiting the former governor’s apparent ability to influence that process. The defendants appeal their convictions for, inter alia, extortion, mail and wire fraud, money laundering, making false statements, and RICO violations. Finding no reversible error, we affirm.


Edwin Edwards was a prominent figure in Louisiana politics for more than two decades. After serving in the Navy during World War II and later obtaining his law degree, he spent several years in private practice and local politics. He served as a member of the United States House of Representatives from 1965 until 1972, when he was elected to the first of two consecutive terms as Governor. In 1980, he left the governor’s office and served briefly on the Louisiana Supreme Court. He then returned to private practice until 1984, when he was elected to a third term as Governor. After two federal corruption trials in 1985 and 1986, resulting in a hung jury and an acquittal, respectively, he lost his bid for re-election in 1987. In 1992, however, the voters sent him back to the Governor’s office for an unprecedented fourth term. When that term ended in 1996, he once again returned to private practice. In private practice, he worked closely with his son, Stephen Edwards, who is also a lawyer

Brown, Johnson, and Stephen Edwards contend that there was insufficient evidence to support their convictions. At the district court, they moved for acquittal under Fed.R.Crim.P. 29, and we review the denial of that motion de novo. United States v. Alarcon, 261 F.3d 416, 421 (5th Cir.2001). We must decide whether, viewing the evidence in the light most favorable to the government, a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. United States v. Williams, 264 F.3d 561, 576 (5th Cir.2001). We focus, therefore, on whether the verdict was reasonable, not whether we believe it is correct. Id.


[18] Headnote Citing References Brown challenges the sufficiency of the evidence supporting his extortion convictions, which also provided the basis for his RICO and RICO conspiracy convictions. Specifically, he argues that the evidence was insufficient on both of the government’s extortion theories: extortion under color of official right and extortion by wrongful use of fear. Regarding the extortion under color of official right, Brown notes that in the usual case, this type of extortion is limited to the acts of public officials. See United States v. Tomblin, 46 F.3d 1369, 1382 (5th Cir.1995). In cases where it has been applied to private persons, the conduct involved masquerading as a public official or aiding and abetting a public official’s receipt of money. See id. Brown argues that there was no evidence that he either masqueraded as a public official or aided and abetted Governor Edwards’ receipt of the money. Our review of the record, however, reveals ample evidence on which the jury could have reasonably based its verdict. Brown brought principals of LRGC/NORC to the Governor’s Mansion to meet Edwin Edwards on several occasions. Moreover, Edwin Edwards assured them that “Cecil speaks for me,” and “I will pass along any information through Cecil.” These representations provided sufficient evidence for the jury to conclude that Brown’s threats were made under color of official right.

[19] Headnote Citing References The jury also had sufficient evidence on the theory of extortion by wrongful use of fear.FN17 Extortion by wrongful use of fear includes fear of economic harm. Id. at 1384. This harm must take the form of a particular economic loss, not merely the loss of a potential benefit. Id. Brown argues that he did not exploit LRGC/NORC’s fear of not receiving a license, as the evidence merely demonstrates that LRGC/NORC willingly paid him in the hope of receiving an extra benefit not available to others. He analogizes the situation to the facts of United States v. Garcia, 907 F.2d 380, 385 (2d Cir.1990), in which the Second Circuit reasoned that a congressman who had taken money from a company could not be convicted of extortion absent any evidence that the company was making the payments out of fear. By paying the congressman, the Second Circuit held, the victim “was purchasing an advocate, not buying off a thug.” Id. at 384. This was “not the stuff of which extortion is made.” Id. at 385.


FN17. Brown challenges the sufficiency of the evidence in support of the extortion charges relating to both the Jazz and LRGC/NORC schemes. His challenge to the extortion by wrongful use of fear relating to the Jazz scheme is identical to Johnson’s argument and fails for the same reasons. See infra, Part VII.B.

We disagree that this case is similar to Garcia. Instead, we find United States v. Collins, 78 F.3d 1021 (6th Cir.1996), more instructive. In Collins, the Sixth Circuit refused to follow Garcia in light of evidence that the persons making the payments*636 had indeed acted out of fear. Id. at 1030-31. Similarly, in the present case, the jury had ample evidence that the victims were acting out of fear of economic loss. For example, it could have credited the testimony of several persons who stated that as a result of Brown’s threats, they believed that they would not even have an opportunity to obtain a license. One such person, Allan Morse, testified that: “[W]e all felt the same way. Everybody at every meeting felt that if these payments were not made, then it would automatically shut off any chance that we would receive a license.” In light of this evidence we conclude that this is not a situation like Garcia, in which the payees were merely attempting to obtain preferential access and thought that, even without the payments, they would have a fair opportunity to compete for the license. To the contrary, unlike Garcia, this is the stuff of which extortion is made. FN18


FN18. Brown’s attack on his Travel Act conviction also fails for these same reasons. The basis of the Travel Act conviction is that Brown engaged in interstate travel in order to carry out his extortion. He does not dispute that he traveled to Missouri, only whether his actions constituted extortion. As his extortion challenge is unpersuasive, his attack on the Travel Act conviction fails.

Brown also attacks his mail and wire fraud convictions by arguing that there was no fraud because when he promised a license to LRGC/NORC, he firmly believed that he could deliver. In particular, he cites the testimony of Russ Meyer, the president of LRGC, who said that “he was absolutely convinced that what he was saying was a hundred percent true. I believe that Cecil felt at that time he was able to deliver what he said he could.” This argument, however, overlooks the substantial evidence of fraud in his dealings with LRGC/NORC. Such evidence of deceit includes: (1) in January 1993, Brown convinced LRGC/NORC that they would receive not one, but two licenses in order to extract another $150,000 from the principals, (2) just days before the Gaming Commission vote, Brown surreptitiously entered into a “consulting agreement” with a competing applicant, promising that applicant a license, and (3) prior to the awarding of certificates of preliminary approval, Brown informed the companies that they would not be receiving a license because Governor Edwards simply had “too many friends.” Given this evidence, we conclude that the jury’s verdict should stand.


Like Brown, Johnson argues that the evidence supporting the government’s theory of extortion by wrongful use of fear relating to the Jazz scheme was insufficient. He contends that, at most, Jazz principals were placed in fear of the loss of a potential economic benefit, which is insufficient to support an extortion conviction. See Tomblin, 46 F.3d at 1384 (stating that “fear of losing a potential benefit does not suffice”). As with Brown, this argument is unavailing. The jury had ample evidence that Johnson capitalized on Jazz’s fear that by not making the payments, it would lose the right to compete at all, not merely preferential treatment in an otherwise fair competition. For example, the jury heard Johnson threaten Jazz that if it did not give him a 12.5% cut, “that was all there was to it. You gone with Edwin…. And you know it too and [expletive] you’ll be walking the streets.” He also stated, “I just hate to see you all lose the license. I mean it’s gone and you can write that off you know.” At one point, Johnson brought Brown to meet Bradley and introduced Brown as his “partner.” He renewed his demand of 12.5%, and pointed to Brown, saying, “You *637 wasn’t gonna get none, you was gone, ‘til I got in there and got him involved.” Bradley testified that he interpreted Johnson’s and Brown’s statements as threats that Jazz would not receive a license if it did not pay. Based on this evidence, the jury’s verdict regarding the Jazz scheme extortion was well supported. Similarly, Johnson’s Travel Act conviction, which he attacks on the same grounds, was supported by sufficient evidence of fear of economic loss.
[20] Headnote Citing References Johnson also challenges the sufficiency of the evidence relating to his false statements conviction. To establish a false statements violation under 18 U.S.C. § 1001, the government must prove that a statement is false and material. See United States v. Wright, 211 F.3d 233, 238 (5th Cir.2000). Although he does not dispute the jury’s finding of falsity, Johnson argues that there was insufficient evidence of materiality. Succinctly stated, his argument is that materiality is lacking because the government never believed his lies. He contends that the FBI was already familiar with the tapes of Johnson’s statements by the time FBI Agent Rossman, to whom the statements were made, became involved in the Jazz investigation. In light of these tapes, Johnson’s claims about Bradley were immediately known to be false and never had the effect of actually deceiving Agent Rossman. It is not necessary, however, for the misrepresentations to “have influenced the actions of the Government agency, and the Government agents need not have been actually deceived.” United States v. Markham, 537 F.2d 187, 196 (5th Cir.1976). The statements must only “have the natural tendency or capacity to deceive, affect, or influence the federal agency.” United States v. Sidhu, 130 F.3d 644, 650 (5th Cir.1997) (holding that false exculpatory statements can support conviction under § 1001). Our review of the record reveals that the jury had sufficient evidence to reach its conclusion that Johnson’s statements were material. Agent Rossman testified that Johnson lied about issues central to the investigation, covered up his involvement, and attacked the credibility of a cooperating witness. In light of this testimony, the evidence was sufficient to support the false statements conviction.

Evans v. U.S.
504 U.S. 255, 112 S.Ct. 1881

Defendant was convicted, in the United States District Court for the Northern District of Georgia, Horace T. Ward, J., of attempted extortion under color of official right in violation of the Hobbs Act and of subscribing to materially false federal income tax return. He appealed. The Court of Appeals, Eleventh Circuit, Circuit Judge, affirmed, 910 F.2d 790. Following grant of certiorari, the Supreme Court, Justice Stevens, held that affirmative act of inducement by public official was not an element of offense of extortion “under color of official right” prohibited by Hobbs Act.



Petitioner was an elected member of the Board of Commissioners of DeKalb County, Georgia. During the period between March 1985 and October 1986, as part of an effort by the Federal Bureau of Investigation (FBI) to investigate allegations of public corruption in the Atlanta area, particularly in the area of rezonings of property, an FBI agent posing as a real estate developer talked on the telephone and met with petitioner on a number of occasions. Virtually all, if not all, of those conversations were initiated by the agent and most were recorded on tape or video. In those conversations, the agent sought petitioner’s assistance in an effort to rezone a 25-acre tract of land for high-density residential use. On July 25, 1986, the agent handed petitioner cash totaling $7,000 and a check, payable to petitioner’s campaign, for $1,000. Petitioner reported the check, but not the cash, on his state campaign-financing disclosure form; he also did not report the $7,000 on his 1986 federal income tax return. Viewing the evidence in **1884 the light most favorable to the Government, as we must in light of the verdict, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469-470, 86 L.Ed. 680 (1942), we assume that the jury found that petitioner accepted the cash knowing that it was intended to ensure that he would vote in favor of the rezoning application and that he would try to persuade his fellow commissioners to do likewise. Thus, although petitioner did not initiate the transaction, his acceptance of the bribe constituted an implicit promise to use his official position to serve the interests of the bribegiver.

n a two-count indictment, petitioner was charged with extortion in violation of 18 U.S.C. § 1951 and with failure to report income in violation of 26 U.S.C. § 7206(1). He was convicted by a jury on both counts. With respect to the extortion count, the trial judge gave the following instruction:

“The defendant contends that the $8,000 he received from agent Cormany was a campaign contribution. The *258 solicitation of campaign contributions from any person is a necessary and permissible form of political activity on the part of persons who seek political office and persons who have been elected to political office. Thus, the acceptance by an elected official of a campaign contribution does not, in itself, constitute a violation of the Hobbs Act even though the donor has business pending before the official.

“However, if a public official demands or accepts money in exchange for [a] specific requested exercise of his or her official power, such a demand or acceptance does constitute a violation of the Hobbs Act regardless of whether the payment is made in the form of a campaign contribution.” App. 16-17.


[1] Headnote Citing References In affirming petitioner’s conviction, the Court of Appeals noted that the instruction did not require the jury to find that petitioner had demanded or requested the money, or that he had conditioned the performance of any official act upon its receipt. 910 F.2d 790, 796 (CA11 1990). The Court of Appeals held, however, that “passive acceptance of a benefit by a public official is sufficient to form the basis of a Hobbs Act violation if the official knows that he is being offered the payment in exchange for a specific requested exercise of his official power. The official need not take any specific action to induce the offering of the benefit.” Ibid. (emphasis in original).FN1

FN1. The Court of Appeals explained its conclusion as follows:

“[T]he requirement of inducement is automatically satisfied by the power connected with the public office. Therefore, once the defendant has shown that a public official has accepted money in return for a requested exercise of official power, no additional inducement need be shown. ‘The coercive nature of the official office provides all the inducement necessary.’ ” 910 F.2d, at 796-797 (footnote omitted).
This statement of the law by the Court of Appeals for the Eleventh Circuit is consistent with holdings in eight other *259 Circuits.FN2 Two Circuits, however, have held that an affirmative act of inducement by the public official is required to support a conviction of extortion under color of official right. United States v. O’Grady, 742 F.2d 682, 687 (CA2 1984) (en banc) (“Although receipt of benefits by a public official is a necessary element of the crime, there must also be proof that the public official did something, under color of **1885 his public office, to cause the giving of benefits”); United States v. Aguon, 851 F.2d 1158, 1166 (CA9 1988) (en banc) (“We find ourselves in accord with the Second Circuit’s conclusion that inducement is an element required for conviction under the Hobbs Act”). Because the majority view is consistent with the common-law definition of extortion, which we believe Congress intended to adopt, we endorse that position.


It is a familiar “maxim that a statutory term is generally presumed to have its common-law meaning.” Taylor v. United States, 495 U.S. 575, 592, 110 S.Ct. 2143, 2155, 109 L.Ed.2d 607 (1990). As we have explained: “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure*260 from them.” Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249-250, 96 L.Ed. 288 (1952).FN3


FN3. Or, as Justice Frankfurter advised, “if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 537 (1947).

At common law, extortion was an offense committed by a public official who took “by colour of his office” FN4 money that was not due to him for the performance of his official duties.FN5 A demand, or request, by the public official was not an element of the offense.FN6 Extortion by the public official was the rough equivalent of what we would now describe as “taking a bribe.” It is clear that petitioner committed that offense. FN7 The question is whether the federal statute, insofar *261 as it applies to official extortion, has narrowed the common-law definition.


FN4. Blackstone described extortion as “an abuse of public justice, which consists in an officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due to him, or more than is due, or before it is due.” 4 W. Blackstone, Commentaries *141 (emphasis added). He used the phrase “by colour of his office,” rather than the phrase “under color of official right,” which appears in the Hobbs Act. Petitioner does not argue that there is any difference in the phrases. Hawkins’ definition of extortion is probably the source for the official right language used in the Hobbs Act. See Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L.Rev. 815, 864 (1988) (hereinafter Lindgren). Hawkins defined extortion as follows:

“[I]t is said, That extortion in a large sense signifies any oppression under colour of right; but that in a strict sense, it signifies the taking of money by any officer, by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due.” 1 W. Hawkins, Pleas of the Crown 316 (6th ed. 1787).

Congress has unquestionably expanded the common-law definition of extortion to include acts by private individuals pursuant to which property is obtained by means of force, fear, or threats. It did so by implication in the Travel Act, 18 U.S.C. § 1952, see United States v. Nardello, 393 U.S. 286, 289-296, 89 S.Ct. 534, 536-539, 21 L.Ed.2d 487 (1969), and expressly in the Hobbs Act. The portion of the Hobbs Act that is relevant to our decision today provides:

**1886 “(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 not more than $10,000 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 present form of the statute is a codification of a 1946 enactment, the Hobbs Act,FN8 which amended the federal Anti-Racketeering Act.FN9 In crafting the 1934 Act, Congress was *262 careful not to interfere with legitimate activities between employers and employees. See H.R.Rep. No. 1833, 73d Cong., 2d Sess., 2 (1934). The 1946 amendment was intended to encompass the conduct held to be beyond the reach of the 1934 Act by our decision in United States v. Teamsters, 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004 (1942).FN10 The amendment did not make any significant change in the section referring to obtaining property “under color of official right” that had been prohibited by the 1934 Act. Rather, Congress intended to broaden the scope of the Anti-Racketeering Act and was concerned primarily*263 with distinguishing between “legitimate” labor activity and labor “racketeering,” so as to prohibit the latter while permitting the former. See 91 Cong.Rec. 11899-11922 (1945).


“Sec. 2. Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving or about to move in trade or commerce-

. . . . .

“(b) Obtains the property of another, with his consent, induced by wrongful use of force or fear, or under color of official right.” Act of June 18, 1934, ch. 569, § 2, 48 Stat. 979-980.
One of the models for the statute was the New York statute:
“Extortion is the obtaining of property from another, or the obtaining the [ sic] property of a corporation from an officer, agent or employee thereof, with his consent, induced by a wrongful use of force or fear, or under color of official right.” Penal Law of 1909, § 850, as amended, 1917 N.Y. Laws, ch. 518, codified in N.Y. Penal Law § 850 (McKinney Supp.1965).
The other model was the Field Code, a 19th-century model code:
“Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right.” Commissioners of the Code, Proposed Penal Code of the State of New York § 613 (1865) (Field Code).
Lindgren points out that according to the Field Code, coercive extortion and extortion by official right extortion are separate offenses, and the New York courts recognized this difference when, in 1891, they said the Field Code treats “extortion by force and fear as one thing, and extortion by official action as another.” People v. Barondess, 61 Hun. 571, 576, 16 N.Y.S. 436, 438 (App.Div.1891). The judgment in this case was later reversed without opinion. See 133 N.Y. 649, 31 N.E. 240 (1892). Lindgren identifies early English statutes and cases to support his contention that official extortion did not require a coercive taking, nor did it under the early American statutes, including the later New York statute. See Lindgren 869, 908.
Many of those who supported the amendment argued that its purpose was to end the robbery and extortion that some union members had engaged in, to the detriment of all labor and the American citizenry. They urged that the amendment was not, as their opponents charged, an anti-labor measure, **1887 but rather, it was a necessary measure in the wake of this Court’s decision in United States v. Teamsters.FN11 In their view, the Supreme Court had mistakenly exempted labor from laws prohibiting robbery and extortion, whereas Congress had intended to extend such laws to all American citizens. See, e.g., 91 Cong.Rec. 11910 (1945) (remarks of Rep. Springer) (“To my mind this is a bill that protects the honest laboring people in our country. There is nothing contained in this bill that relates to labor. This measure, if passed, will relate to every American citizen”); id., at 11912 (remarks of Rep. Jennings) (“The bill is one to protect the right of citizens of this country to market their products without any interference from lawless bandits”).

Although the present statutory text is much broader FN12 than the common-law definition of extortion because it encompasses conduct by a private individual as well as conduct *264 by a public official,FN13 the portion of the statute that refers to official misconduct continues to mirror the common-law definition. There is nothing in either the statutory text or the legislative history that could fairly be described as a “contrary direction,” Morissette v. United States, 342 U.S., at 263, 72 S.Ct., at 249-250, from Congress to narrow the scope of the offense.

“That 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. The Act outlaws such interference ‘in any way or degree.’ ”

FN13. Several States had already defined the offense of extortion broadly enough to include the conduct of the private individual as well as the conduct of the public official. See, e.g., United States v. Nardello, 393 U.S. 286, 289, 89 S.Ct. 534, 536, 21 L.Ed.2d 487 (1969) (“In many States … the crime of extortion has been statutorily expanded to include acts by private individuals under which property is obtained by means of force, fear, or threats”); Bush v. State, 19 Ariz. 195, 198, 168 P. 508, 509-510 (1917) (recognizing that the state Penal Code “has enlarged the scope of this offense so as not to confine the commission of it to those persons who act under color of official right”); People v. Peck, 43 Cal.App. 638, 643, 185 P. 881, 882-883 (1919) (In some States “the statutory definitions have extended the scope of the offense beyond that of the common law so as to include the unlawful taking of money or thing of value of another by any person, whether a public officer or a private individual, and this is so in California …”).

At least one commentator has argued that, at common law, extortion under color of official right could also be committed by a private individual. See Lindgren 875.
The legislative history is sparse and unilluminating with respect to the offense of extortion. There is a reference to the fact that the terms “robbery and extortion” had been construed many times by the courts and to the fact that the definitions of those terms were “based on the New York law.” 89 Cong.Rec. 3227 (1943) (statement of Rep. Hobbs); see 91 Cong.Rec. 11906 (1945) (statement of Rep. Robsion). In view of the fact that the New York statute applied to a public officer “who asks, or receives, or agrees to receive” unauthorized compensation, N.Y.Penal Code § 557 (1881), the reference to New York law is consistent with an intent to apply the common-law definition. The language of the New York statute quoted above makes clear that extortion could be committed by one who merely received an unauthorizedpayment.*265 FN14 This was the statute that was in force in New York when the Hobbs Act was enacted.

**1888 The two courts that have disagreed with the decision to apply the common-law definition have interpreted the word “induced” as requiring a wrongful use of official power that “begins with the public official, not with the gratuitous actions of another.” United States v. O’Grady, 742 F.2d, at 691; see United States v. Aguon, 851 F.2d, at 1166 (“ ‘inducement’ can be in the overt form of a ‘demand,’ or in a more subtle form such as ‘custom’ or ‘expectation’ ”). If we had no common-law history to guide our interpretation of the statutory text, that reading would be plausible. For two reasons, however, we are convinced that it is incorrect.

First, we think the word “induced” is a part of the definition of the offense by the private individual, but not the offense by the public official. In the case of the private individual, the victim’s consent must be “induced by wrongful use of actual or threatened force, violence or fear.” In the case of the public official, however, there is no such requirement. The statute merely requires of the public official that he obtain “property from another, with his consent, … under color of official right.” The use of the word “or” before “under color of official right” supports this reading.FN15
*266 Second, even if the statute were parsed so that the word “induced” applied to the public officeholder, we do not believe the word “induced” necessarily indicates that the transaction must be initiated by the recipient of the bribe. Many of the cases applying the majority rule have concluded that the wrongful acceptance of a bribe establishes all the inducement that the statute requires.FN16 They conclude that the coercive element is provided by the public office itself. And even the two courts that have adopted an inducement requirement for extortion under color of official right do not require proof that the inducement took the form of a threat or demand. See United States v. O’Grady, 742 F.2d, at 687; United States v. Aguon, 851 F.2d, at 1166.FN17


Petitioner instructed the agent on the form of the payment (“What you do, is make me out one, ahh, for a thousand…. And, and that means we gonna record it and report it and then the rest would be cash”), and agreed with the agent that the payment was being made, not because it was an election year, but because there was a budget to support petitioner’s actions, and that there would be a budget either way (“Either way, yep. Oh, I understand that. I understand”). Id., at 38.
*267 [2] Headnote Citing References[3] Headnote Citing References[4] Headnote Citing References Petitioner argues that the jury charge with respect to extortion, see supra, at 1883-1884, allowed the jury to convict him on the basis of the “passive acceptance of a **1889 contribution.” Brief for Petitioner 24.FN18 He contends that the instruction did not require the jury to find “an element of duress*268 such as a demand,” id., at 22, and it did not properly describe the quid pro quo requirement for conviction if the jury found that the payment was a campaign contribution.

We reject petitioner’s criticism of the instruction, and conclude that it satisfies the quid pro quo requirement of McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), because the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts; fulfillment of the quid pro quo is not an element of the offense. We also reject petitioner’s contention that an affirmative step is an element of the offense of extortion “under color of official right” and need be included in the instruction.FN19 As we explained above, our construction of the statute is informed by the common-law tradition from which the term of art was drawn and understood. We hold today 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.
Our conclusion is buttressed by the fact that so many other courts that have considered the issue over the last 20 years have interpreted the statute in the same way.FN21 Moreover, *269 given the number of appellate **1890 court decisions, together with the fact that many of them have involved prosecutions of important officials well known in the political community,FN22 it is obvious that Congress is aware of the prevailing view that common-law extortion is proscribed by the Hobbs Act. The silence of the body that is empowered to give us a “contrary direction” if it does not want the common-law rule to survive is consistent with an application of the normal presumption identified in Taylor and Morissette.


[5] Headnote Citing References An argument not raised by petitioner is now advanced by the dissent. It contends that common-law extortion was limited to wrongful takings under a false pretense of official right. Post, at 1895, see post, at 1896 (offense of extortion “was understood … [as] a wrongful taking under a false pretense of official right”) (emphasis in original); post, at 1897. It is perfectly clear, however, that although extortion accomplished by fraud was a well-recognized type of extortion, there were other types as well. As the court explained in Commonwealth v. Wilson, 30 Pa.Super. 26 (1906), an extortion case involving a payment by a would-be brothel owner to a police captain to ensure the opening of her house:

“The form of extortion most commonly dealt with in the decisions is the corrupt taking by a person in office of a *270 fee for services which should be rendered gratuitously; or when compensation is permissible, of a larger fee than the law justifies, or a fee not yet due; but this is not a complete definition of the offense, by which I mean that it does not include every form of common-law extortion.” Id., at 30.

See also Commonwealth v. Brown, 23 Pa.Super. 470, 488-489 (1903) (defendants charged with and convicted of conspiracy to extort because they accepted pay for obtaining and procuring the election of certain persons to the position of schoolteachers); State v. Sweeney, 180 Minn. 450, 456, 231 N.W. 225, 228 (1930) (alderman’s acceptance of money for the erection of a barn, the running of a gambling house, and the opening of a filling station would constitute extortion) (dicta); State v. Barts, 132 N.J.L. 74, 76, 83, 38 A.2d 838, 841, 844 (Sup.Ct.1944) (police officer, who received $1,000 for not arresting someone who had stolen money, was properly convicted of extortion because “generically extortion is an abuse of public justice and a misuse by oppression of the power with which the law clothes a public officer”); White v. State, 56 Ga. 385, 389 (1876) (If a ministerial officer used his position “for the purpose of awing or seducing” a person to pay him a bribe that would be extortion).

The dissent’s theory notwithstanding, not one of the cases it cites, see post, at 1896-1897, and n. 3, holds that the public official is innocent unless he has deceived the payor by representing that the payment was proper. Indeed, none makes any reference to the state of mind of the payor, and none states that a “false pretense” is an element of the offense. Instead, those cases merely support the proposition that the services for which the fee is paid must be official and that the official must not be entitled to the fee that he collected-both elements of the offense that are clearly satisfied in this case. The complete**1891 absence of support for the dissent’s thesis presumably explains why it was not advanced by petitioner in the District Court or the Court of Appeals, is not *271 recognized by any Court of Appeals, and is not advanced in any scholarly commentary.FN23


The judgment is affirmed.

It is so ordered.

*272 Justice O’CONNOR, concurring in part and concurring in the judgment.

I join Parts I and II of the Court’s opinion, because in my view they correctly answer the question on which the Court granted certiorari-whether or not an act of inducement is an element of the offense of extortion under color of official right. See Pet. for Cert. i. The issue raised by the dissent and discussed in Part III of the Court’s opinion is not fairly included in this question, see this Court’s Rule 14.1(a), and sound prudential reasons suggest that the Court should not address it. Cf. Yee v. City of Escondido, 503 U.S. 519, 535-538, 112 S.Ct. 1522, 1532-1534, 118 L.Ed.2d 153 (1992). Neither party in this case has briefed or argued the question. A proper resolution of the issue requires a detailed examination of common law extortion cases, which in turn requires intensive historical research. As there appear to be substantial arguments on either side, we would be far more assured of arriving at the correct result were we to await a case in which the issue had been addressed by the parties. It is unfair to the United States to decide a case on a ground not raised by the petitioner and which the United States has had no opportunity to address. For these reasons, I join neither the dissent nor Part III of the Court’s opinion, and I express no view as to which is correct.

Justice KENNEDY, concurring in part and concurring in the judgment.

The Court gives a summary of its decision in these words: “We hold today 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.” Ante, at 1885. In my view the dissent is correct to **1892 conclude that this language requires a quid pro quo as an element of the Government’s case in a prosecution under 18 U.S.C. § 1951, see post, at 1898-1899, and the Court’s opinion can be interpreted in a way that is consistent with this rule. Although the Court appears to accept the requirement*273 of a quid pro quo as an alternative rationale, in my view this element of the offense is essential to a determination of those acts which are criminal and those which are not in a case in which the official does not pretend that he is entitled by law to the property in question. Here the prosecution did establish a quid pro quo that embodied the necessary elements of a statutory violation. I join Part III of the Court’s opinion and concur in the judgment affirming the conviction. I write this separate opinion to explain my analysis and understanding of the statute.

With regard to the question whether the word “induced” in the statutory definition of extortion applies to the phrase “under color of official right,” 18 U.S.C. § 1951(b)(2), I find myself in substantial agreement with the dissent. Scrutiny of the placement of commas will not, in the final analysis, yield a convincing answer, and we are left with two quite plausible interpretations. Under these circumstances, I agree with the dissent that the rule of lenity requires that we avoid the harsher one. See post, at 1900. We must take as our starting point the assumption that the portion of the statute at issue here defines extortion as “the obtaining of property from another, with his consent, induced … under color of official right.”
I agree with the Court, on the other hand, that the word “induced” does not “necessarily indicat[e] that the transaction must be initiated by the” public official. Ante, at 1888 (emphasis in original). Something beyond the mere acceptance of property from another is required, however, or else the word “induced” would be superfluous. That something, I submit, is the quid pro quo. The ability of the official to use or refrain from using authority is the “color of official right” which can be invoked in a corrupt way to induce payment of money or to otherwise obtain property. The inducement generates a quid pro quo, under color of official right, that the statute prohibits. The term “under color of” is used, as I think both the Court and the dissent agree, to *274 sweep within the statute those corrupt exercises of authority that the law forbids but that nevertheless cause damage because the exercise is by a governmental official. Cf. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482-483, 5 L.Ed.2d 492 (1961) (“ ‘Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of state law’ ”) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)).

The requirement of a quid pro quo means that without pretense of any entitlement to the payment, a public official violates § 1951 if he intends the payor to believe that absent payment the official is likely to abuse his office and his trust to the detriment and injury of the prospective payor or to give the prospective payor less favorable treatment if the quid pro quo is not satisfied. The official and the payor need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods. The inducement from the official is criminal if it is express or if it is implied from his words and actions, so long as he intends it to be so and the payor so interprets it.

The criminal law in the usual course concerns itself with motives and consequences, not formalities. And the trier of fact is quite capable of deciding the intent with which words were spoken or actions taken as well as the reasonable construction given to them by the official and the payor. See McCormick v. United States, 500 U.S. 257, 270, 111 S.Ct. 1807, 1815, 114 L.Ed.2d 307 (1991) (“It goes without saying that matters of intent are for the jury to consider”). In this respect a prosecution under the statute has some similarities to a contract dispute, with **1893 the added and vital element that motive is crucial. For example, a quid pro quo with the attendant corrupt motive can be inferred from an ongoing course of conduct. Cf. United States v. O’Grady, 742 F.2d 682, 694 (CA2 1984) (Pierce, J., concurring). In such instances, for a public official to commit extortion under color of official right, his course of dealings must establish a real understanding that failure to make *275 a payment will result in the victimization of the prospective payor or the withholding of more favorable treatment, a victimization or withholding accomplished by taking or refraining from taking official action, all in breach of the official’s trust. See Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L.Rev. 815, 887-888 (1988) (observing that the offense of official extortion has always focused on public corruption).


Thus, I agree with the Court, that the quid pro quo requirement is not simply made up, as the dissent asserts. Post, at 1899. Instead, this essential element of the offense is derived from the statutory requirement that the official receive payment under color of official right, see ante, at 1889, n. 20, as well as the inducement requirement. And there are additional principles of construction which justify this interpretation. First is the principle that statutes are to be construed so that they are constitutional. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397-1398, 99 L.Ed.2d 645 (1988), and cases cited therein. As one Court of Appeals Judge who agreed with the construction the Court today adopts noted, “the phrase ‘under color of official right,’ standing alone, is vague almost to the point of unconstitutionality.” United States v. O’Grady, supra, at 695 (Van Graafeiland, J., concurring in part and dissenting in part) (citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-499, 102 S.Ct. 1186, 1193-1194, 71 L.Ed.2d 362 (1982)). By placing upon a criminal statute a narrow construction, we avoid the possibility of imputing to Congress an enactment that lacks necessary precision.

 Moreover, the mechanism which controls and limits the scope of official right extortion is a familiar one: a state of mind requirement. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (refusing to impute to Congress the intent to create a strict liability crime despite the absence of any explicit mens rea requirement in the statute). Hence, even *276 if the quid pro quo requirement did not have firm roots in the statutory language, it would constitute no abuse of judicial power for us to find it by implication.

U.S. v. Wilkerson
361 F.3d 717
C.A.2 (N.Y.),2004.

MINER, Circuit Judge.

In the early evening hours of September 8, 1997, Bilberto Lopez and his brother, Natividad, were the victims of a “hold up” while they were moving a stove into the basement of a multi-dwelling residential building that they owned in Brooklyn. Instead of complying with their assailant’s demand for money, the Lopez brothers resisted. Consequently, both brothers were shot, and Bilberto died on the basement floor from a gunshot wound. Their assailant fled without recovering the $350 to $400 in cash that Bilberto was carrying on his person.

 Qasim Duffy and defendant-appellant Linwood Wilkerson were subsequently tried separately in the United States District Court for the Eastern District of New York (Block, J.) for their respective roles in the hold up: Duffy, for being the hold up man who allegedly attempted to rob the Lopez brothers and for killing Bilberto; and Wilkerson, for his alleged role in (i) planning the hold up, (ii) aiding Duffy’s use of the gun during the hold up, (iii) driving the getaway car used in the hold up, and (iv) attempting to intimidate a neighbor who had both overheard an incriminating conversation between Duffy and Wilkerson and taken a photograph of Duffy shortly before the hold up. Duffy was acquitted. Wilkerson was convicted on: (i) one count of conspiring with Duffy to interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. §§ 1951 & 3551 et seq.; (ii) one count of aiding and abetting Duffy’s attempt to interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. §§ 2, 1951 & 3551 et seq.; (iii) one count of aiding and abetting Duffy in his carrying of a firearm during, and in relation to, a crime of violence that resulted in the death of Bilberto, in violation of 18 U.S.C. §§ 2, 924(c)(1), 924(j)(1), 1111 & 3551 et seq.; (iv) one count of attempted witness tampering, in violation of 18 U.S.C. §§ 2, 1512(b)(2)(A) & 3551 et seq.; and (v) one count of being an accessory after the fact to the conspiracy and the attempt to interfere with commerce by robbery, in violation of 18 U.S.C. §§ 3 & *721 3551 et seq. Wilkerson was sentenced principally to a prison term of 211 months.


In this appeal, we are called upon to address the following arguments raised by Wilkerson that: (i) the evidence was legally insufficient to support the jury’s finding that he aided and abetted Duffy in his carrying of the gun used to kill Bilberto; (ii) the evidence was legally insufficient to support the jury’s finding that the attempted robbery/conspiracy, if successful, would have affected interstate commerce, as required by the Hobbs Act; (iii) the District Court erroneously instructed the jury concerning the interstate commerce element of the Hobbs Act; (iv) the District Court abused its discretion in precluding Wilkerson’s counsel from eliciting during the cross-examination of two Government witnesses certain inconsistencies between their testimony at Wilkerson’s trial and their testimony during Duffy’s earlier trial; and (v) the District Court erred in admitting certain testimony from a Government witness over objections from Wilkerson that such testimony constituted improper vouching for another Government witness. For the reasons that follow, we find all of these arguments to be without merit and affirm the judgment of conviction.


Viewing the evidence in the light most favorable to the Government, see United States v. Mapp, 170 F.3d 328, 331 (2d Cir.1999), the evidence presented at trial was as follows: The Lopez brothers owned an eight-unit residential building located at 141 Hull Street in Brooklyn, New York. Two of the eight dwellings were occupied by the Lopez brothers and their families, and the remaining six units were rented out to residential tenants. The basement of the building was used exclusively by the Lopez brothers to store materials used in their local landscaping business as well as personal items. In addition to their landscaping business, the Lopez brothers also worked as part-time dishwashers at a TGI Friday’s restaurant on the weekends.

 Wilkerson was a plumber who lived in an apartment located at 139 Hull Street. The Lopez brothers had hired Wilkerson several times in the past to perform plumbing work at their building and to repair the van that they used in their landscaping business. Two months before the hold up, the Lopez brothers called Wilkerson to come to their building for an emergency repair job to fix a broken pipe. When he did not arrive quickly enough, the Lopez brothers hired another plumber to do the job. When Wilkerson eventually arrived and discovered that another plumber was doing the work, he became very upset and began arguing with the Lopez brothers. To defuse the situation, the Lopez brothers agreed to pay him, and he left.


Shortly before the hold up, Sheri Ligon (who lived at 143 Hull Street) was taking pictures of neighborhood children in front of Wilkerson’s building. Running low on film, Ligon walked to the corner store located at the intersection of Rockaway Avenue and Hull Street to purchase more film. On her way to the store, she saw Wilkerson, his wife, and a man who she later identified as Duffy all sitting on the stairs leading up to 147 Hull Street. As she walked passed them, Ligon overheard Wilkerson say to Duffy, “Wait for them to go inside, and go inside and get what you gotta get and come back out.” According to Ligon, Wilkerson saw her as she was walking past and, before Duffy could respond, Wilkerson “looked up and [said] shush, be quiet, it’s too many ears.”


At around 6:50 p.m., the Lopez brothers and a twelve-year-old boy named Martin “David” Nunez were moving a stove from the hallway of their building into the basement. When they reached the basement, they closed behind them the door leading to the outside. Shortly thereafter, Natividad heard a knock at the basement door and then a voice from behind the door-a person inquiring about renting one of the apartments in the building. When Natividad opened the door, a man entered the basement, pointed a gun at them, announced that “this [was] a hold up,” and demanded that they give him whatever money they had. Instead of complying, the Lopez brothers attempted to wrestle the gun away from their assailant while Nunez ran up the stairs. During the ensuing struggle, each of the brothers was shot, and Bilberto was fatally wounded. The robber then ran out of the building without having taken any money. Natividad testified at trial that the robber was black; was wearing a shirt that was “yellowish, sort of yellow[,] … and white trousers”; and wearing brown eyeglasses with thick lenses. The police subsequently recovered a pair of blood-covered, brown glasses from the basement. Natividad could not recall whether his assailant was wearing a jacket and was unable to identify Duffy as the robber. Nunez, however, did identify Duffy as the robber.

 A few minutes later, Ligon heard the superintendent of her building yelling at her to get the children out of the street because the superintendent had heard gun shots coming from the basement of the Lopez brothers’ building. While she was telling the children to get out of the street and go inside, Ligon looked toward the corner of Hull and Rockaway and saw Duffy running around the corner. Immediately thereafter, she saw Wilkerson get into his brown Cadillac and drive off in the same direction.

In late January/early February of 2001, Wilkerson and Duffy were indicted and arraigned for the hold up of the Lopez brothers. The Government later stipulated to a severance, and the two were tried separately in early 2002. While Wilkerson was incarcerated pending trial, he befriended Richard Toney, a federally-sentenced prisoner who taught Bible studies at the prison chapel. Toney testified that Wilkerson asked him for legal advice concerning the latter’s upcoming trial and subsequently made several incriminating statements to Toney when he asked Wilkerson to tell him about the facts of Wilkerson’s case. In particular, Wilkerson admitted to Toney that Wilkerson had threatened Ligon and her daughter in an attempt to retrieve the roll of film containing Duffy’s photograph. When Toney asked Wilkerson if the latter had been involved in the robbery, Wilkerson responded: “[W]e did [it,] me and Duffy did it, but I can’t be placed in the basement, they can’t place me inside the basement. I didn’t actually pull the trigger but they can’t place me inside the basement.” According to Toney, Wilkerson then told him that “Duffy [had run] out of the basement, run down the street, around the block” and that Wilkerson had gone “around the block, picked Duffy up, [and taken] Duffy somewhere.”

Wilkerson’s judgment of conviction and sentence was entered on March 18, 2003, and this timely appeal followed.FN1

 In United States v. Elias, 285 F.3d 183, the defendant was convicted of robbing $1400 in cash, along with cigarettes, subway MetroCards, telephone calling cards, and food stamps from a neighborhood grocery store in Queens. The evidence that this robbery affected interstate commerce was that the grocery story sold beer that had been brewed in Mexico and the Dominican Republic and fruit that had been grown in Florida and California. In affirming the defendant’s conviction, we rejected the argument that the Government was required to show that some of the products sold at the grocery store were purchased directly from out-of-state suppliers. Specifically, we held that “a robbery of a local distribution or retail enterprise may be said to affect interstate commerce if the robbery impairs the ability of the local enterprise to acquire-whether from out-of-state or in-state suppliers-goods originating out-of-state.” Id. at 189. The rationale for our holding was that the grocery store


furnished an outlet for goods that move[d] in interstate commerce, and the robbery impaired its financial capacity to draw goods from interstate origins for local resale. Since the evidence at trial established that the [grocery store] stocked goods originating out-of-state, the requisite indirect, minimal effect on interstate commerce was thereby sufficiently established.


In United States v. Jamison, 299 F.3d 114, a divided panel of our court affirmed a Hobbs Act conviction arising out of the attempted murder and robbery of a businessman at his home. The victim was “a part owner of an incorporated retail business …, which sold clothing, shoes, [pagers], cell phones, CDs, and tapes,” and a trafficker in cocaine. Id. at 115-16. The attempted robbery occurred shortly after the victim had returned home from purchasing $15,000 worth of merchandise for his business, carrying approximately $3300 in unspent cash from his shopping trip. Id. at 116. In addition to the cash he was carrying with him when he returned home, the victim also had stored approximately $18,000 in cash in a safe in his house.

The defendant showed up at the victim’s house with a gun, demanding to know “[w]here[ ] the money” was. Id. At the defendant’s trial, the Government sought to satisfy the interstate commerce element of the Hobbs Act by demonstrating the effect that the robbery would have had on the victim’s clothing and narcotics businesses. “The [G]overnment’s theory was that [the defendant’s] attempted robbery, if successful, would have depleted cash that [the victim had] regularly used to purchase items in interstate commerce as inventory for his clothing and cocaine businesses.” Id. at 116-17. FN5 On appeal, the *728 defendant argued that “the evidence did not allow the inference that [the victim had] intended to use the money in his possession to purchase goods in interstate commerce,” and that “where the robbery victim is a private individual, rather than a business, the robbery is less likely to affect commerce, and the [G]overnment must therefore show a ‘substantial’ effect, rather than a minimal effect,” on interstate commerce. Id. at 118.


FN5. The Government established that the items in the victim’s clothing inventory were manufactured, inter alia, outside the United States and that the cocaine sold by the victim originated outside of New York. 299 F.3d at 117.

We rejected the first argument and declined to reach the second. In particular, in concluding that the victim had “commingled the moneys coming to him from all sources to be used for all purposes,” we relied on his testimony that he had “intended to use the approximately $21,000 he had in cash … for ‘drugs or clothing, whatever.’ ” Id. at 119. With respect to the defendant’s argument that the victim’s use of the word “whatever” indicated that the victim had intended to use the money for personal expenses, we found that the victim’s testimony (when viewed in the light most favorable to the Government) established that “he [had] used [the money] primarily to purchase business inventory for both businesses.” Id. Thus, “[t]he jury could draw the inference that, had [the] robbery attempt succeeded in depriving [the victim] of the $21,000 … he had on hand at his house, this would have substantially diminished his inventory purchases of clothing manufactured [out of state], and cocaine originating [out of state].” Id. Furthermore, because we concluded that “[r]obbing [this particular victim] in his home was no different in its effect on commerce from robbing a place of business,” id. at 120 n. 2, we declined to reach the defendant’s argument that a stricter standard should apply for satisfying the interstate commerce element in Hobbs Act prosecutions arising out of the robbery of an individual as opposed to a business. Id. at 119 n. 2 & 119-21.

 In United States v. Fabian, 312 F.3d 550, another divided panel of our court affirmed a Hobbs Act conviction arising out of the robbery of (and conspiracy to rob) two separate victims, one of whom was a retired taxi cab driver. The defendant, believing that the retired taxi driver was a loan shark, broke into the victim’s house and stole several thousand dollars and some jewelry. In affirming the defendant’s conviction, we rejected the argument that the interstate commerce element was not met because the retired taxi driver was not, in fact, a loan shark involved in interstate commerce. “What [was] legally relevant [was] whether at the time of the crime, [the defendant] believed he was robbing a loan shark …, not whether the crimes actually involved a loan shark.” Id. at 555 (emphasis added).


On the same day that we affirmed the Hobbs Act conviction in Fabian, we reversed the Hobbs Act conviction in United States v. Perrotta, 313 F.3d 33, where the “only connection to interstate commerce [was] that the victim work [ed] for a company engaged in interstate commerce.” Id. Such a “link between the crime and interstate commerce,” we held, was “simply too attenuated to support federal Hobbs Act jurisdiction.” Id. at 36. In reaching this conclusion, we “join[ed] our sister circuits in drawing a distinction between the extortion of an individual and the extortion of a business for the purposes of establishing Hobbs Act jurisdiction.” Id.FN6 To permit *729 the defendant’s Hobbs Act conviction to stand, we concluded, “would expand the reach of the Hobbs Act to include every robbery or extortion committed.” Id. at 37. Finally, we identified circumstances in which the interstate commerce element of the Hobbs Act would be satisfied when the target of the defendant was an individual instead of a business: (i) where the victim directly participated in interstate commerce; (ii) where the defendant targeted the victim “because of her status as an employee at a company participating in interstate commerce”; (iii) where the assets of a company engaged in interstate commerce were, or would have been, depleted as a result of the harm or potential harm, respectively, to the individual victim; or (iv) where the defendant targeted the assets of a business engaged in interstate commerce rather than an individual. Id. at 37-38. But we also held that “[m]erely showing employment with a company that [did] business in interstate commerce, without more, stretch[ed] the Hobbs Act too far.” Id. at 38.

 Finally, in United States v. Silverio, 335 F.3d 183 (2d Cir.2003) (per curiam), we affirmed the Hobbs Act conviction of a defendant who attempted to rob a doctor in his apartment, in the belief that the doctor kept a substantial amount of cash from his medical practice there. Specifically, we held that the evidence demonstrated an “interstate nexus because [the doctor] was a direct participant in interstate commerce through his business of treating a worldwide celebrity clientele, because the robbery would have depleted the assets of [the doctor’s] business, and because the robbery targeted the assets of his business rather than his personal property.” Id. at 187. We explained that “in the absence of an actual effect on interstate commerce, a defendant’s belief about the nature of his crime may be determinative. But when … ample effects on interstate commerce [have been] demonstrated, the state of mind of the defendant is not relevant.” Id.


[8] Headnote Citing References With the above precedents in mind, we turn to the evidence introduced by the Government to support the interstate commerce element of Wilkerson’s Hobbs Act conviction. At the time of the hold up, the Lopez brothers had been operating their landscaping business for about five years. According to Natividad, the landscaping business was an “informal” business, i.e., it was not incorporated; there was no separate bank account for the business; the business’ phone number was the home phone number of one of the Lopez brothers; the income from the business was not *730 reported to the Internal Revenue Service; and no written records were kept for the business. The services performed by the business were clipping trees and mowing and fertilizing lawns for residential, in-state customers. The demands of the business varied with the changing of the seasons, but during the summer, the Lopez brothers worked nine-to-ten hours a day, six days a week.

 The Lopez brothers purchased the supplies used in their landscaping business from two local retail stores: Home Depot and Cale Brothers. The Lopez brothers typically purchased their supplies every week or two, typically on Mondays. Natividad testified that items shown in photographs of the basement taken shortly after the hold up were supplies that had been purchased for the landscaping business that were being stored in the basement.FN7 These items included clippers, fertilizer, landscaping bags, peat moss, and a lawnmower. A Home Depot employee (who for nine years had managed the garden department in the Brooklyn Home Depot store in which he worked) testified that several of the landscaping supplies contained in the photographs of the basement were carried by his store and other Home Depot stores, although he could not confirm that the items in the photographs had, in fact, been purchased from Home Depot. The Home Depot employee further testified that most of the supplies featured in the photographs of the basement had originated outside New York. For example, the peat moss came from Canada; the lawnmower, from Minnesota; the lawnmower oil, from North Carolina; the fertilizer, from Ohio; and the lime, from somewhere in the southwestern United States.

Natividad also testified about the $350 to $400 Bilberto was carrying when he was killed. Although the hold up occurred on a Monday evening, the Lopez brothers had not yet purchased landscaping supplies for the week. According to Natividad, they were “putting the money in the bank and cashing the checks … in order to be able to make some payments that [they] had to make.” Natividad further testified that they had intended to use this money to “buy the equipment that [they] used in gardening” and to pay for other, family-related expenses. There is no evidence in the record to indicate the source of the money Bilberto was carrying (e.g., the landscaping business, rental income from their building, salary from TGI Friday’s, etc.). Finally, Toney testified that Wilkerson had given him a number of reasons for robbing the Lopez brothers:


[Wilkerson] … knew these guys because they owned a landscaping company or lawn service or something, that he had worked with these guys before but he did not like the guy that had got killed, they [were] having confrontations as far as money or something but he didn’t like the guy that had gotten killed and he knew they always kept money inside this establishment, large amounts of money.

 In light of the Hobbs Act cases described above, the totality of this evidence, when viewed in the light most favorable to the Government, establishes a sufficient nexus between the charged offenses and interstate commerce to satisfy the interstate commerce element of the Hobbs Act, albeit barely. Specifically, this evidence would permit a rational juror to infer that: (i) Wilkerson conspired (and aided and abetted an attempt) to rob the assets of the Lopez brothers’ landscaping business; (ii) the landscaping business, although it serviced only in-state customers, purchased supplies from an in-state retailer, which had purchased those same supplies *731 from out-of-state wholesalers; and (iii) if the attempted robbery had been successful, it would have depleted assets from the landscaping business that would have been used to buy supplies that traveled in interstate commerce. Under the Hobbs Act precedents discussed above, this evidence was legally sufficient to support Wilkerson’s conviction.

 [9] Headnote Citing References Admittedly, several factual anomalies converged to make this a somewhat unusual case. First, the Lopez brothers’ landscaping business was not a traditional, incorporated business, such as the grocery store in Elias. But we have affirmed Hobbs Act convictions where the victims’ businesses did not comply with all of the formalities observed in the legitimate business world and, indeed, even where the victims engaged in the buying and selling of contraband. See, e.g., Fabian, 312 F.3d 550 (drug trafficking by one victim and alleged loansharking by the other victim); Jamison, 299 F.3d 114 (cocaine trafficking); cf. United States v. Jones, 30 F.3d 276 (2d Cir.1994) (robbery victim was an undercover narcotics officer whose depleted assets were to be used to purchase narcotics). Second, the robbery took place at an individual’s residence instead of at his place of business, in contrast to the robbery in Elias. But as we observed in Jamison, Fabian, and Silverio, the fact that a robbery takes place at a residence does not transform the robbery from the robbery of a business into the random robbery of an individual (as was the case in Perrotta), so long as the evidence supports the conclusion that the robbery targeted the assets of a business. Third, the amount of money found on the victim was only a few hundred dollars. Given that Wilkerson was charged with the inchoate offenses of conspiracy and attempted robbery, however, the relevant inquiry is not how much money was at the crime scene (or indeed whether there was any money at the crime scene at all), but rather how much money Wilkerson intended to steal and what effect the theft of that amount of money would have had on interstate commerce. See Silverio, 335 F.3d at 187.

 On appeal, Wilkerson argues that there was insufficient evidence to satisfy the interstate element of the Hobbs Act, because “[t]he [G]overnment offered no evidence as to the source of [the] money; [i.e.,] whether it was from [the Lopez brothers’] dishwashing job, from rent, from lawn mowing, or from all of these sources.” Given the evidence discussed above, however, this is a red herring. That some or all of the money Bilberto was carrying may have come from a source other than the landscaping business is of no moment, given that a rational juror could have inferred that Wilkerson had targeted the assets of the Lopez brothers’ landscaping business and that at least some of the money Bilberto was carrying at the time of the hold up would have been used to purchase out-of-state supplies for that business. See Jamison, 299 F.3d at 119-21.

Wilkerson also argues that there was insufficient proof that the money Bilberto was carrying would have been used to purchase out-of-state gardening supplies. Specifically, Wilkerson points to the facts that the Lopez brothers purchased their supplies from both Home Depot and Cale Brothers and that no evidence was introduced concerning the origins of the landscaping materials sold at Cale Brothers. Nevertheless, the testimony from the Home Depot employee established not only that the supplies depicted in the photographs taken of the basement had been shipped to Home Depot from out-of-state suppliers, but also that several of these items (e.g., lime) could have been purchased only from an out-of-state supplier, as there were no local suppliers of these products in New York. Consequently, a rational juror could have inferred that the *732 targeted funds would have been used to purchase landscaping supplies that could have come only from out of state.


Finally, Wilkerson argues that the evidence failed to establish that the Lopez brothers were “targeted” because of their landscaping business. In support of this argument, Wilkerson relies on the fact that, in Toney’s testimony, he testified in separate sentences that (i) Wilkerson knew that the Lopez brothers owned a landscaping business, and (ii) Wilkerson knew that they always kept large sums of money inside their house. While Toney’s testimony (like Ligon’s) was not a model of grammatical clarity, a rational juror could have inferred from his testimony that Wilkerson had planned to rob the Lopez brothers at their home because he believed they kept large sums of money from their landscaping business there.


[10] Headnote Citing References In affirming Wilkerson’s Hobbs Act conviction based on the evidence that was presented to the jury, we are mindful that we stand on the metaphorical slippery slope, dangerously close to “expand[ing] the reach of the Hobbs Act to include nearly every robbery … committed.” Perrotta, 313 F.3d at 37. Indeed, were we the first panel to rule on this type of sufficiency-of-the-evidence challenge, we might well reach a different conclusion. But we are not the first panel to address this issue and are bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court. See BankBoston, N.A. v. Sokolowski (In re Sokolowski), 205 F.3d 532, 534-35 (2d Cir.2000) (per curiam); see e.g., United States v. Rybicki, 354 F.3d 124 (2d Cir.2003) (en banc) (overruling in part, United States v. Handakas, 286 F.3d 92, 104-07 (2d Cir.2002)).FN8 Accordingly, we find that the Government provided sufficient evidence for a rational juror to have “found the essential elements of [the § 1951 count] beyond a reasonable doubt.” See Glenn, 312 F.3d at 63.




Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s


%d bloggers like this: