United States v. Robert M. Baker

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No. 95-1525
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Robert M. Baker, *
*
Defendant - Appellant. *
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Submitted: November 15, 1995
Filed: April 29, 1996
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Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
___________
LOKEN, Circuit Judge.
St. Louis police officer Robert M. Baker appeals his conviction and
thirty-month sentence for violating the Travel Act, 18 U.S.C. § 1952(a).
Baker asserts that his extortion of a St. Louis motorist was not linked to
interstate commerce, that the district court improperly admitted evidence
Baker had been extorting motorists for more than ten years, and that the
court misapplied the Sentencing Guidelines. We remand for further
consideration of one sentencing issue but otherwise affirm.
Early in the morning of February 16, 1994, Baker and his partner,
Alderick Reed, driving an unmarked police car, stopped motorist Scott
Crawford on Kingshighway in St. Louis. Baker searched Crawford's vehicle
and discovered a loaded gun concealed beneath the driver's seat. Baker
handcuffed Crawford, put him in the back seat of the police car, and drove
to a police station,
with Reed following in Crawford's car. Baker told Crawford, "we can work
it off, if you keep your mouth shut."
At the station, Baker placed Crawford in an interrogation room and
told the still-handcuffed Crawford, "you'll be spending like $5,000 for a
lawyer and . . . going through the courts . . . or you can work it out
through us." Crawford chose the latter option. Baker asked if Crawford
could "get something tonight." Crawford replied that he could withdraw up
to $300 from his account at a local bank, Normandy Bank, by using an
automatic teller machine (ATM). Crawford and Baker agreed to use for this
purpose a nearby ATM operated by Mercantile Bank of St. Louis.
Crawford then drove his own car to the Mercantile ATM, with the
officers following. At 2:22 a.m., he withdrew $300. Crawford exchanged
the money for his gun and ammunition and drove home. At his wife's urging,
he reported the incident the next day. Baker was charged and convicted of
violating the Travel Act, 18 U.S.C. § 1952, which provides in relevant
part:
(a) Whoever . . . uses . . . any facility in interstate
or foreign commerce, with intent to --
* * * * *
(3) otherwise promote, manage, establish, carry on, or
facilitate . . . any unlawful activity,
and thereafter performs or attempts to perform --
(A) an act described in paragraph . . . (3)
shall be fined under this title, imprisoned not more
than 5 years, or both . . . .
* * * * *
(b) As used in this section (i) "unlawful activity" means
. . . (2) extortion, bribery, or arson in violation of the laws
of the State in which committed . . . .
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There was evidence at trial that Mercantile Bank operates a network of
ATMs. Customers of participating banks like Normandy may use these ATMs
to make interstate deposits and withdrawals. Though Crawford's withdrawal
triggered an entirely intrastate electronic transfer between Normandy and
Mercantile, the jury found that Baker caused Crawford to use a facility in
interstate commerce.
I.
Baker first argues that the indictment failed to allege and the
government failed to prove a sufficient nexus to interstate commerce to
fall within the jurisdictional limits of the Travel Act. He relies on
Rewis v. United States, 401 U.S. 808, 811 (1971), in which the Supreme
Court held that "conducting a gambling operation frequented by out-of-state
bettors, by itself," does not violate the Travel Act, and on cases holding
that an incidental or fortuitous connection to interstate commerce is
insufficient, such as United States v. Altobella, 442 F.2d 310, 313-15 (7th
Cir. 1971). We conclude those cases are distinguishable.
We reject Baker's contention that his conduct had an insufficient
effect on interstate commerce. Baker's extortion did not merely affect
interstate commerce. Federal jurisdiction was established by proof that
Baker carried out extortion by causing Crawford to use an interstate
network of ATMs which comprise, in the words of the statute, a "facility
in interstate or foreign commerce." "Congress is empowered to regulate and
protect the instrumentalities of interstate commerce . . . even though the
threat may come only from intrastate activities." United States v. Lopez,
115 S. Ct. 1624, 1629-30 (1995).
Moreover, use of this interstate facility was not merely incidental
to Baker's unlawful activity, like the subsequent use of the mails to clear
a personal check in Altobella. Here, Baker wished to extort a cash payment
from Crawford before releasing him.
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That could only be accomplished at 2:20 in the morning by accessing an
interstate ATM facility. Thus, there was sufficient evidence for the jury
to find that Baker caused Crawford to use this interstate facility to carry
on Baker's unlawful activity. "[I]t is enough that the interstate travel
or the use of interstate facilities makes easier or facilitates the
unlawful activity." United States v. Perrin, 580 F.2d 730, 736 (5th Cir.
1978), aff'd, 444 U.S. 37 (1979). Baker's unlawful conduct falls squarely
within the literal language of the Travel Act. See United States v.
Pecora, 693 F.2d 421, 424 (5th Cir. 1982), cert. denied, 462 U.S. 1119
(1983); United States v. Bursten, 560 F.2d 779, 783-84 (7th Cir. 1977);
United States v. Eisner, 533 F.2d 987, 992 (6th Cir.), cert. denied, 429
U.S. 919 (1976).
II.
Baker next challenges admission of the testimony of Earl Parnell, who
purchased ten to twelve firearms from Baker between late 1977 and 1987.
When asked how Baker had obtained these firearms, Parnell explained:
[Baker] said you can find these [people] that comes along, you
stop them for a traffic stop or whatever, he says, and you
search the car, they got a gun in the car, and he said, the
dumb [expletive] are scared to go to jail . . . . He says, I
tell them you got a choice to make. You can either work it out
with me or you can go deal it with the courts; which one you
want to do? Most of the time, they said, hey, go ahead and
take the gun.
The district court instructed the jury that Parnell's testimony was to be
considered only to determine Baker's state of mind or plan.
Fed. R. Evid. 404(b) allows admission of "prior bad act" evidence if
it is relevant to a material issue, established by a preponderance of the
evidence, more probative than prejudicial, and similar in kind and close
in time. United States v. Hazelett, 32
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F.3d 1313, 1319 (8th Cir. 1994). It is a rule of inclusion; we will
overturn the admission of Rule 404(b) evidence only if "the appellant can
show that the evidence in question clearly had no bearing upon any of the
issues involved." United States v. Street, 66 F.3d 969, 976 (8th Cir.
1995) (quotation omitted).
Evidence of prior crimes or bad acts is admissible to show a common
plan or scheme, see United States v. Sanchez, 963 F.2d 152, 155 (8th Cir.
1992), or intent, see United States v. Crouch, 46 F.3d 871, 875 (8th Cir.),
cert. denied, 116 S. Ct. 193 (1995); United States v. Rivera-Mendina, 845
F.2d 12, 16 (1st Cir.), cert. denied, 488 U.S. 862 (1988) (prior extortion
scheme admissible to show intent). Parnell testified to a remarkably
similar series of prior actions by Baker: a motorist is stopped for
speeding, a firearm is discovered, and the motorist is given the choice of
facing charges or "working it out" with Baker. Coupled as it was with an
appropriate limiting instruction, this was clearly proper Rule 404(b)
evidence.
Baker also contends that the district court abused its discretion
because the events were too remote in time and Parnell's testimony too
prejudicial. Proximity in time is a factor in deciding whether to admit
404(b) evidence, but there is no fixed period within which the prior acts
must have occurred. Lapses of time greater than in this case may be
reasonable, see United States v. Shoffner, 71 F.3d 1429, 1432-33 (8th Cir.
1995), particularly if the prior acts are "so nearly identical in method
as to earmark them as the handiwork of the accused," United States v. Drew,
894 F.2d 965, 970 (8th Cir.), cert. denied, 494 U.S. 1089 (1990) (quotation
omitted). Here, the prior acts were virtually identical and were repeated
over the course of a decade. There was no abuse of discretion in
concluding that this highly probative testimony was neither too remote nor
too prejudicial to be admissible under Rule 404(b).
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III.
Baker further argues that the district court made two errors in
applying the Sentencing Guidelines, resulting in an improper base offense
level and an unwarranted enhancement for abuse of a position of public
trust. We review the district court's fact finding for clear error, and
its application of the guidelines de novo, "giving due deference to the
district court's application of the guidelines." United States v. Evans,
30 F.3d 1015, 1020 (8th Cir. 1994), cert. denied, 115 S. Ct. 1383 (1995).
A. Base Offense Level. Baker argues that his base offense level
should be six under § 2E1.2, the section referenced for violations of 18
U.S.C. § 1952. See USSG App. A. However, § 2E1.2(a)(2) says to use the
base offense level for the underlying crime, if greater than six. Here,
the underlying crime was the state law offense of extortion by a police
officer, so the guideline for the most analogous federal offense must be
found. See § 2E1.2, comment. (n.2); United States v. Langley, 919 F.2d
926, 929-31 (5th Cir. 1990). The district court chose § 2C1.1, which
governs bribery and extortion "Under Color of Official Right." We agree.
See United States v. Mariano, 983 F.2d 1150, 1158 (1st Cir. 1993).
Section 2C1.1 prescribes a minimum base offense level of ten but also
cross references other sections. The district court applied the cross-
reference to § 2J1.2, obstruction of justice, on the ground that Baker's
extortion offense "was committed for the purpose of . . . obstructing
justice in respect to, another criminal offense," § 2C1.1(c)(2). The other
criminal offense was, of course, Crawford's firearm violation. The
obstruction of justice cross reference, plus a three-level increase for
"substantial interference with the administration of justice" under §
2J1.2(b)(2), increased Baker's base offense level to fifteen.
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See § 2J1.2, comment. (n.1) (substantial interference includes "improper
termination of a felony investigation").
Baker argues that the court should instead have cross-referenced to
§ 2X3.1, the accessory after the fact guideline, which calls for a base
offense level six levels lower than that of Crawford's firearm offense.
We disagree. Section 2C1.1(c)(2) says to cross reference to obstruction
or accessory "as appropriate." Conduct such as Baker's might fit the
statutory definition of either accessory after the fact or obstruction of
justice. See 18 U.S.C. §§ 3, 1510. Section 2J1.2(c)(1) contains its own
cross reference to § 2X3.1, but says to apply that cross reference only "if
the resulting offense level [under § 2X3.1] is greater than" the level
determined under § 2J1.2(a) and (b). In United States v. Pompey, 17 F.3d
351 (7th Cir. 1994), the court upheld a cross reference from § 2C1.1 to
§ 2X3.1, rather than § 2J1.2, because that produced the highest base
offense level. Here, a cross reference to § 2X3.1 would have complicated
the analysis -- by requiring calculation of the base offense level of
whatever firearms offenses Crawford may have committed under state or
federal law -- and apparently would not have yielded a greater base offense
level than § 2J1.2. In these circumstances, we conclude that the district
court correctly applied these interrelated guideline provisions. See
Mariano, 983 F.2d at 1158.
B. Abuse of Public Trust. Baker next challenges the two-level
increase he received for abuse of public trust under USSG § 3B1.3. Because
police officers clearly occupy positions of public trust, the inquiry in
most cases is whether defendant used a police officer's special knowledge
or access to facilitate or conceal the offense. See United States v.
Williamson, 53 F.3d 1500, 1525 (10th Cir.), cert. denied, 116 S. Ct. 218
(1995). We agree with the district court that, from this perspective,
Baker's conduct was a most egregious abuse of a position of public trust.
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However, § 3B1.3 provides that the abuse of trust enhancement should
not be applied "if an abuse of trust or skill is included in the base
offense level or specific offense characteristic," in other words, if "an
abuse of trust is so central to [defendant's] crime that the abuse would
be included" in calculating that crime's base offense level. United States
v. Claymore, 978 F.2d 421, 423 (8th Cir. 1992). Abuse of trust is an
element of extortion under color of public office. See United States v.
Butt, 955 F.2d 77, 88-90 (1st Cir. 1992). Thus, Baker argued to the
district court, imposing this enhancement was impermissible "double
counting." He renews that argument on appeal. Unfortunately, neither the
court's comments at sentencing, nor the government's brief to this court,
address why the enhancement is nonetheless proper.
The interplay between § 2C1.1 extortion offenses and the § 3B1.3
enhancement is addressed by Application Note 3 to § 2C1.1:
3. Do not apply § 3B1.3 except where the offense level is
determined [by a cross reference mandated by] § 2C1.1(c)(1),
(2), or (3). In such cases, an adjustment from § 3B1.3 may
apply.
USSG § 2C1.1, comment. (n.3). Here, Baker's base offense level was
determined by just such a cross reference to the obstruction of justice
guideline, § 2J1.2. In United States v. Ford, 21 F.3d 759, 766-67 (7th
Cir. 1994), in which defendant received an abuse of trust enhancement
because his base offense level was determined under the RICO guideline, not
§ 2C1.1, the court explained:
Application Note 3 makes clear that the abuse of trust
exemption does not carry over in cross-referencing situations.
Once a different guideline comes into play, the abuse of trust
enhancement should be applied even though the new offense is
based on the underlying offense of public bribery, presumably
because the abuse of trust is not already reflected in the base
offense levels for those other [cross referenced] offenses.
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Application Note 3 and Ford establish that Baker's double counting
argument does not prevail simply because the starting point for determining
his base offense level was § 2C1.1. However, there is a further
complexity. After cross referencing from § 2C1.1 to § 2J1.2, the district
court further increased Baker's base offense level by three levels because
of a "Specific Offense Characteristic," Baker's substantial interference
with the administration of justice. See § 2J1.2(b)(2). Recall that
§ 3B1.3 says not to employ the abuse of trust enhancement "if an abuse of
trust or skill is included in the base offense level or specific offense
characteristic." The issue in this case thus comes down to whether there
is double counting, within the meaning of § 3B1.3 and Application Note 3
to § 2C1.1, if the § 3B1.3 enhancement is added to this specific
application of § 2J1.2. We have found no relevant Guidelines precedent.
Because the issue is, at least in part, fact intensive, we conclude that
it should be addressed in the first instance by the district court.
Accordingly, we remand for reconsideration of the USSG § 3B1.3
sentencing issue. In all other respects, the judgment of the district
court is affirmed.
McMILLIAN, Circuit Judge, dissenting.
I respectfully dissent from Part I of the majority opinion.
Although I believe an ATM can be and ordinarily is an instrument used in
interstate commerce, I find, under the circumstances of the present case,
the use was neither caused by appellant nor has a sufficient nexus to the
offense to fall within the jurisdictional limits of the Travel Act. Here,
the use of the ATM was suggested by Crawford and the use was entirely
incidental and fortuitous. Hence, I would reverse the conviction because
the use of the ATM was in no way a part of the plan or scheme to carry out
an extortion.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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