United States v. Cisneros , 72 F. App'x 161 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 15, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 02-41248
UNITED STATES OF AMERICA
Plaintiff - Appellee
VERSUS
RICARDO CISNEROS
Defendant - Appellant
Appeal from the United States District Court
For the Southern District of Texas, Laredo
L-01-CR-726-ALL
Before DAVIS, SMITH and DUHE’, Circuit Judges.
PER CURIAM:*
Cisneros, a bail bondsman, challenges his conviction and
sentence under the Hobbs Act for conspiring and acting with Juan
Alfonso Rodriguez, the Assistant Chief Investigator for the Webb
County District Attorney, to extort money from Cisernos’ clients to
fix criminal cases pending in Webb County Texas. We find no error
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
and affirm.
I.
A.
The prosecution against Cisneros stems from an investigation
into public corruption in the DA’s Office in Webb County, Texas.
This court has issued two published opinions in cases arising
from this investigation. See United States v. Rubio, 321 F.3d
517 (5th Cir. 2003); United States v. Villafranca, 260 F.3d 374(5th Cir. 2001).
Between 1994 and 1998, Cisneros and Rodriguez worked
together to secure favorable dispositions of cases against
several of Cisneros’ clients in exchange for money. Rodriguez
testified that, in his position as the assistant chief
investigator of the DA’s office, he was authorized to reduce
charges in misdemeanor cases. Cisneros approached Rodriguez
about fixing theft, drug and DWI cases, usually by reducing the
charged offenses to lesser charges. In return for fixing cases
for Cisneros’ clients, Rodriguez received varying amounts of cash
from Cisneros ranging from $150 to $200 for thefts and $300 for
DWI’s.
At trial, the arresting officers, Cisneros’ clients who were
arrested for the underlying offenses and Rodriguez testified
against Cisneros. Through this testimony the Government showed
that Cisneros and Rodriguez fixed DWI cases filed against Joe
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Alaniz, Jose Molina, Jose Acevedo, and Cesar Adams in return for
money. The Government also showed that Cisneros and Rodriguez
fixed a theft case for Laura Carrillo-Garcia in return for money.
To establish the required nexus to interstate commerce, the
Government presented the expert testimony of Dr. Robert Voas, an
expert on alcohol and highway safety. Dr. Voas testified at
length regarding the effect of alcohol related accidents on
highway safety. Dr. Voas testified that alcohol is the most
important factor in fatal automobile accidents which cause
congestion of highways, delaying the flow of commerce. According
to Dr. Voas, the enforcement of DWI laws acts as a deterrent to
drunk driving; however, the failure to enforce these laws reduces
their effectiveness.
B.
The jury convicted Cisneros on one conspiracy count(Count 1)
and one substantive count(Count 2) of violating the Hobbs Act.
Count 1 charged Cisneros with conspiring with Rodriguez to extort
money to fix cases pending in Webb County. Count 2 charged
Cisneros and Rodriguez with extorting money from Cesar Adams who
was charged with DWI. The district court sentenced Cisneros to
concurrent sentences of forty-one months along with a fine, a
term of supervised release and a special assessment. This appeal
followed.
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II.
A.
Cisneros argues first that as applied to his case, the Hobbs
Act is unconstitutional because Congress exceeded its power under
the Commerce Clause.
This argument is foreclosed by this court’s decisions in
Rubio and Villafranca. As noted above, the charges in Rubio
arose out of the same investigation of the Webb county DA’s
office. Like Cisneros, defendants, Rubio and Castaneda, were
also charged with extortion in violation of the Hobbs act and
conspiracy to commit extortion in violation of the Hobbs Act.
Some of the charges against Rubio and Castaneda stemmed from
taking money to fix DWI offenses. Like Cisneros, Rubio and
Castaneda argued that fixing DWI cases would not permit a fact
finder to find the required nexus to interstate commerce. In
addressing this argument, we stated the following in Rubio:
While the vast majority of the counts against
Rubio and Castaneda are controlled by Villafranca,
others involve the extortion of money to provide
favorable dispositions of DWI offenses. In United
States v. Wright, 797 F.2d 245 (5th Cir. 1986), this
court found that the requisite nexus to commerce
existed where extortion charges under the Hobbs Act
involved failure to prosecute drunk drivers. In United
States v. Wright, the court relied on expert testimony
that non-enforcement of DWI laws results in more
alcohol related accidents and less highway safety to
support its conclusion that the extortion affected
interstate commerce.
In this case, as in Wright, the government’s
expert testified that drinking and driving is likely
the major factor in highway accidents. He stated that
the high risks can be reduced by treating the drinking
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driver or by suspending or revoking driving privileges
but that failure to prosecute drunk drivers encourages
more drunk driving and jeopardizes highway safety.
Though United States v. Wright was issued prior to
the Supreme Court’s opinions in Lopez, Jones, and
Morrison, we agree with the Eleventh Circuit’s post-
Lopez decision in United States v. Castleberry, 116
F.3d 1384 (11th Cir. 1997), that there is a sufficient
nexus to commerce to permit jurisdiction under the
Hobbs Act.
Based on the forgoing, we are satisfied that as
applied to each of the counts against Rubio and
Castaneda the Hobbs Act does not exceed Congress’s
power to regulate commerce.
The facts of this case are indistinguishable from Rubio.
The Government relied on the same expert witness, Dr. Voas, who
gave essentially the same testimony as he did in Rubio. Thus,
the counts with which Cisneros was charged suffer no
constitutional infirmity on this basis. Accordingly, Cisneros’
argument on this point is controlled by Rubio.
Cisneros also argues that Count I must be reversed because
one of the objects of the conspiracy involved an arrest for
theft. But the government’s proof that Cisneros conspired to fix
DWI cases is sufficient to support the conviction on this count.
It is therefore unnecessary for us to consider whether fixing
retail theft cases can also satisfy the Hobbs Act interstate
commerce element. The jury obviously accepted the government’s
theory that a nexus existed between fixing DWI cases and
interstate commerce because the jury also returned a guilty
verdict on the substantive Hobbs Act count(Count 2) charging
defendant with fixing a DWI case.
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B.
Cisneros argues next that the trial court erred in refusing
the following requested instruction:
To convict defendant, however, you must find and
believe beyond a reasonable doubt that each of the
wrongful acts alleged by the Government, by itself,
without considering the aggregate effect of such
alleged violations of law, had a substantial effect on
interstate commerce. To convict, you must be satisfied
beyond a reasonable doubt that the effect on interstate
commerce of such alleged offense was not remote or
attenuated, but was direct and substantial.
The district court rejected this instruction and instructed the
jury as follows:
Commerce includes travel, trade, transportation, and
communications. “Interstate commerce” means commerce
between one state of the United States and another. It
is not necessary for the government to prove that a
defendant’s conduct in a particular count substantially
affected interstate commerce. Instead, it is
sufficient for the evidence that the conduct had only a
minimal effect, so long as the conduct described in a
particular count is of a type which, if repeated many
times over, would have a substantial effect on
interstate commerce.
We have approved the standard set out in the district
court’s instruction on a number of occasions. See United States
v. Jennings, 195 F.3d 795, 800 (5th Cir. 1999); United States v.
Robinson, 119 F.3d 1205 (5th Cir. 1997), cert. denied, 522 U.S.
1139, 118 S.Ct. 1104, 140 L.Ed.2d 158 (1998); United States v.
Miles, 122 F.3d 235, 241 (5th Cir. 1997). Cisneros’ argument is
therefore foreclosed by circuit precedent.
C.
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Cisneros argues next that the government failed to produce
sufficient evidence to establish an essential element of a Hobbs
Act case, namely that a public official was paid for the
favorable disposition of a criminal case. In reviewing a
sufficiency claim, the court “must determine ‘whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact 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)(citations omitted).
Under the Hobbs Act, one of the elements of extortion is
that property be obtained from another “under the color of
official right.”1 18 U.S.C. §1951 (b)(2). In order to prove
that the property was wrongfully obtained under the “color of
official right,” the Government must prove that a public official
obtained payment to which he was not entitled. United States v.
Stephens, 964 F.2d 424, 429 (5th Cir. 1992). Thus, in order to
convict Cisneros, the Government had to show that a public
1
The Hobbs Act reads in pertinent part as follows:
(a) whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery, extortion or attempt or conspires so to
do, . . . shall be fined under this title or imprisoned not
more than twenty years, or both.
(b) As used in this section --
(2) The term “extortion” means the obtaining of property
from another, with his consent, . . . under the color of
official right.
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official was paid part of the proceeds taken to fix the
arrestee’s case.
With regard to Count II, Cisneros argues that only he and
the arrestee, Cesar Adams, were involved in fixing Adams’ case.
There is no contention by the Government that Cisneros is a
public official.
The trial record does not support Cisneros’ argument. The
record reveals that after he was arrested, Adams paid Cisneros
$800 to have his case fixed. Three weeks later, Cisneros told
Adams that “everything was taken care of.” Adams’ DWI was
reduced to a charge of failing to stay in the proper lane, and
the case was disposed of through the payment of a $150 fine.
Rodriguez, who is unquestionably a public official, testified
during Cisneros’ trial that he fixed Adams case and was paid $300
to do so. Rodriguez’s testimony, along with this corroborating
evidence, demonstrates that this element of the offense was met.
Thus, Cisneros’ sufficiency argument targeting this element of
the offense has no merit.
Cisneros also contends that the Government was required to
prove that the extortion had the effect of depleting the assets
of the arrestee. Cisneros cites United States v. Collins, 40
F.3d 95 (5th Cir. 1994) in support of this argument. However, a
careful reading of Collins shows that the theory of asset
depletion is only one means of showing the requisite connection
to interstate commerce. It is not, as Cisneros contends, a
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required element of proof in every Hobbs Act case. The depletion
of assets theory is generally applied to cases involving
businesses where it can be inferred that the depletion of the
business’s assets obstructs or delays the business’s operations
and thereby indirectly affects interstate commerce. Id. at 99-
100. On the other hand, as discussed above, extortion may have a
direct effect on commerce where it involves interstate travelers
or businesses engaged in interstate commerce. Id. at 99, n. 15.
The government relied on this latter theory and produced
sufficient evidence to establish the nexus with interstate
commerce.
D.
Finally Cisneros argues that the district court erred in
increasing the base offense level by eight levels based on its
conclusion that Cisneros’ payment to Rodriquez “...”involved a
payment for the purpose of influencing...any official holding a
high level decision making or sensitive position. United States
Sentencing Guidelines Manual, Section 2C1.1(b)(2)(B).
Rodriguez was the Assistant Chief Investigator in the DA’s
Office. In this capacity, he was in charge of most
administrative matters in the office. He was also responsible
for the supervision of approximately eight other investigators
and office clerks and oversaw most of the office budgetary
matters. In addition to Rodriguez’s administrative duties, he
conducted and supervised investigations. Rodriguez testified
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that in this capacity he was authorized to reduce charges
(including DWI’s) of offenders to lesser offenses. The district
court’s finding that Rodriguez was in a “high-level decision
making or sensitive position” was not clear error.2
CONCLUSION
Because the district court correctly rejected all of
Cisernos’ arguments, we affirm his conviction and sentence.
AFFIRMED.
2
We decline to consider Cisernos’ argument raised for the first
time in a supplemental brief that the district court plainly erred
in assessing a two level enhancement for obstruction of justice.
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