Case: 10-30671 Document: 00511539159 Page: 1 Date Filed: 07/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 13, 2011
No. 10-30671 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MICHAEL L. THOMPSON
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before JONES, Chief Judge, and BARKSDALE and GRAVES, Circuit Judges.
EDITH H. JONES, Chief Judge:
Appellant Michael Thompson was convicted of extortion in violation of the
Hobbs Act, 18 U.S.C. § 1951, and sentenced to 18 months imprisonment. He
appeals this conviction, raising two issues: first, that the proof presented at trial
constituted a constructive amendment of the government’s indictment, in
violation of the Fifth Amendment; and, second, that the evidence was
insufficient to show that Thompson obtained property within the meaning of the
Hobbs Act. Finding these arguments meritless, we AFFIRM.
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I. Background
Appellant Michael Thompson (“Thompson”) was the Executive Director of
the Poverty Point Reservoir District (“PPRD”), a political subdivision of
Louisiana whose purpose is to develop the natural resources of the district. Joe
Cleveland (“Cleveland”) was an independent contractor who performed
maintenance services for PPRD and was compensated on an hourly basis.
Cleveland’s wife, Kathy Cleveland, worked as Thompson’s administrative
assistant, which involved processing her husband’s time sheets and submitting
them to PPRD for payment. In response to accusations that Kathy Cleveland
was embezzling PPRD funds, she and her husband entered into agreements with
the government to testify against Thompson. In particular, the Clevelands
would testify that Thompson orchestrated a scheme in which Cleveland was paid
nearly $8,000 for work performed for Thompson personally over the course of
five years. Using his position as Executive Director of PPRD, Thompson coerced
Cleveland into performing a myriad of jobs at Thompson’s home and farm, while
paying Cleveland with PPRD funds.
The government obtained a single-count indictment against Thompson
charging a violation of the Hobbs Act, 18 U.S.C. § 1951. In the indictment, the
government alleged, in pertinent part, that
the Defendant, MICHAEL L. THOMPSON, did knowingly, willfully
and unlawfully obstruct, delay, affect and attempt to obstruct, delay
and affect commerce and the movement of articles and commodities
in commerce by extortion . . . , in that Defendant MICHAEL L.
THOMPSON unlawfully obtained property, that is, funds of the
Poverty Point Reservoir District, not due him or his office with
consent, said consent being induced and obtained under color of
official right, all in violation of [18 U.S.C. §1951].
Through pretrial discovery and a bill of particulars produced by the government,
Thompson eventually learned that the government’s theory rested on
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Thompson’s payment of PPRD funds to a PPRD employee–later disclosed to be
Cleveland–for work performed for Thompson personally.
On March 16, 2009, Thompson moved to dismiss the indictment,1 arguing
that the government failed to charge a Hobbs Act violation, since Cleveland was
not deprived of property within the meaning of the Hobbs Act. Thompson
contended that since Cleveland was compensated for his labor, he was not
deprived of any property. The district court ultimately denied the motion, but
sua sponte raised the issue of whether the government’s presentation of
evidence, as set forth in the bill of particulars and pleadings, would constitute
a constructive amendment of the indictment. After hearing oral argument on
the matter, the district court concluded that a constructive amendment would
not result from the presentation of this theory to the jury and the case thus
proceeded to trial. Thompson moved for judgment of acquittal at the close of the
government’s case and again at the close of the evidence. He also reurged his
second motion to dismiss. The district court denied these motions.
On January 20, 2010, the jury returned a verdict of guilty. The district
court subsequently sentenced Thompson to 18 months imprisonment and
ordered him to pay $8,000 in restitution. Thompson now appeals. Finding his
arguments to be without merit, we AFFIRM.
II. Standards of Review
We review Thompson’s claim of constructive amendment de novo. United
States v. McMillan, 600 F.3d 434, 450 (5th Cir. 2010). In reviewing Thompson’s
challenge to the sufficiency of the evidence, we view the evidence in the light
most favorable to the jury's verdict and affirm if a rational trier of fact could
have found that the government proved all essential elements of a crime beyond
a reasonable doubt. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999).
1
This was the second of two motions to dismiss. The content of the first is not
important for this appeal.
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Credibility determinations and reasonable inferences are resolved in favor of the
jury’s verdict. Id.
III. Discussion
Thompson raises two issues on appeal: (1) that his indictment was
constructively amended in violation of the Fifth Amendment; and (2) that the
government failed to present evidence that Thompson obtained property within
the meaning of the Hobbs Act. We address these issues in turn.
A.
The Fifth Amendment provides that “[n]o person shall be held to answer
for a capital, or otherwise infamous crime, unless on . . . indictment of a Grand
Jury.” U.S. CONST. amend. V. The Supreme Court has held that this provision
guarantees criminal defendants a right to be tried solely on allegations in an
indictment returned by the grand jury. Stirone v. United States, 361 U.S. 212,
217, 80 S. Ct. 270, 273 (1960); see also United States v. Threadgill, 172 F.3d 357,
370 (5th Cir. 1999). Consequently, once an indictment issues, only the grand
jury may broaden or alter it. See United States v. Broadnax, 601 F.3d 336, 340
(5th Cir. 2010). This rule is designed to safeguard a defendant’s “right to be
tried upon the charge in the indictment as found by the grand jury.” United
States v. Adams, 778 F.2d 1117, 1123 (5th Cir. 1985)(quoting Gaither v. United
States, 413 F.2d 1061, 1071-72 (D.C. Cir. 1969)).
Not all variations between allegation and proof, however, rise to the level
of a constructive amendment and thus violate this rule. See United States v.
Millet, 123 F.3d 268, 272 (5th Cir. 1997). “A constructive amendment occurs
when it permits the defendant to be convicted upon a factual basis that
effectively modifies an essential element of the offense charged or permits the
government to convict the defendant on a materially different theory or set of
facts than that with which she was charged.” McMillan, 600 F.3d at 451
(quotation marks and citation omitted). Where this occurs, a finding of prejudice
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is not necessary to establish a constitutional violation. See United States v.
Chambers, 408 F.3d 237, 241 (5th Cir. 2005) (noting that constructive
amendments of the indictment “are reversible per se”) (quoting United States v.
Adams, 778 F.2d at 1123)). If, however, the variance between allegations in the
indictment and proof at trial does not rise to the level of constructive
amendment, our review is for harmless error. See United States v. Nunez,
180 F.3d 227, 231 (5th Cir. 1999).
In this case, Thompson’s counsel conceded at oral argument that if a mere
variance occurred, our inquiry is complete, since the defense suffered no
prejudice as a result. Thus, we need only determine on what side of the
constructive amendment divide this case falls.
The government’s single-count indictment charged Thompson with
violating the Hobbs Act. In order to establish such a violation, the government
was required to allege and prove that Thompson “obstruct[ed], delay[ed], or
affect[ed] commerce or the movement of any article or commodity in commerce”
by means of “extortion.” 18 U.S.C. § 1951. The Supreme Court has clarified that
there are two “essential elements” to this provision: (1) interference with
commerce, and (2) extortion. See Stirone, 361 U.S. at 218, 80 S. Ct. at 274;
United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir. 1997). Since the
“interference with commerce” element is not at issue on appeal, the remaining
question is whether the government’s proof at trial modified the “essential
element” of extortion alleged in the indictment, such that a constructive
amended resulted.
The Hobbs Act defines “extortion” as “the obtaining of property from
another, with his consent, induced . . . under color of official right.” 18 U.S.C.
§ 1951(b)(2). The indictment is quoted in pertinent part above. Thompson
argues that the indictment identifies PPRD as the entity deprived of its property
and the entity whose consent was induced or obtained under color of official
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right. Thompson asserts that, at trial, no such theory of extortion was
presented. Rather, the theory presented was that it was Cleveland–not
PPRD–who was deprived of property by consent and thus extorted within the
meaning of the statute.
While Thompson correctly identifies the government’s trial theory, we
disagree it is necessarily inconsistent with theory of the case as set forth in the
indictment. Admittedly, the indictment is ambiguous and thus may be subject
to competing interpretations. But to the extent the drafting of the indictment
was unclear–as to whose consent was obtained and the modus operandi of the
extortion–the government resolved any ambiguities during pretrial discovery
and through clarifications in its bill of particulars. As a result, by the time trial
began, the government’s theory was crystalized.
Thompson asserts that the indictment alleges that PPRD was the party
extorted, since the only party deprived of property in the indictment was PPRD.
The parties agree that this allegation alone would not support a claim of
extortion. The government explains that it was nonetheless an essential part of
its Hobbs Act claim, since interference with PPRD funds was the jurisdictional
hook necessary to satisfy the interstate element of the statute. See Stirone,
361 U.S. at 218, 80 S. Ct. at 274. To satisfy the element of extortion, however,
the government admits it needed to prove an additional deprivation of property
that would qualify as extortion.
At trial, the government adduced evidence that Thompson obtained
Cleveland’s services, with Cleveland’s consent, under color of official right. As
discussed below, this evidence suffices to prove extortion under the Hobbs Act.
The only question is whether this evidence constructively amended the
indictment. We hold that it does not.
As discussed by the parties, there were two deprivations of property
occasioned by Thompson’s scheme: use of PPRD funds and appropriation of
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Cleveland’s labor. While these two deprivations satisfied different elements
under the Hobbs Act, both were undoubtedly part of a single extortionate
scheme. And the relationship between them is clear: while the indictment
alleged that PPRD was deprived of property, the evidence relating to Cleveland
explained the modus operandi by which this was achieved. Both parties were
ultimately victims of the same scheme.
Of course, the indictment in this case was not a model of clarity on this
point. Nevertheless, taking together the allegations in the indictment, the
subsequent clarifications in the bill of particulars, and the evidence adduced at
trial, we are satisfied that the government has pursued a single, consistent
theory throughout this prosecution. The allegations regarding Cleveland did not
amend or alter the indictment, but rather “explained the allegations of the
indictment.” United States v. Lisinksi, 728 F.2d 887, 893 (7th Cir. 1984). We are
thus convinced that the jury was not permitted to convict Thompson “upon a
factual basis that effectively modifie[d] an essential element of the offense
charged” or “on a materially different theory or set of facts than that with which
[he] was charged.” United States v. Reasor, 418 F.3d 466, 475 (5th Cir. 2005).
The seminal Supreme Court decision on constructive amendment does not
compel a different outcome. See Stirone, 361 U.S. 212, 80 S. Ct. 270. In Stirone,
the indictment charged defendant with unlawfully interfering with interstate
commerce in violation of the Hobbs Act. Id. at 213-14, 80 S. Ct. at 271. In
particular, defendant had used his position in a labor union to threaten
interference with the victim’s contract to supply ready-mixed concrete for the
erection of a steel-processing plant. Id. The government charged that
defendant’s conduct interfered with the interstate shipment of sand, which was
brought in from other states to be used in making the concrete. Id. At trial,
however, the government presented evidence that defendant interfered with
interstate commerce not only in sand, but also in prospective steel shipments
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from the steel plant under construction. Id. The Court held that the
government’s presentation of this theory–along with instructions permitting the
jury to convict based on it–effected a constructive amendment of the indictment.
Id. at 215, 80 S. Ct. at 272. The Court reasoned that the evidence regarding
interference with prospective steel shipments was an independent basis on
which the government urged the jury to convict, but which was not charged in
the indictment. Id. at 218-19, 80 S. Ct. at 274. The government had alleged
interference with sand in order to satisfy the interstate commerce element of a
Hobbs Act violation. To allow conviction based on interference with an entirely
separate aspect of interstate commerce would therefore violate the Fifth
Amendment. Accordingly, defendant’s conviction was reversed. Id. at 219,
80 S. Ct. at 274.
In this case, the government did not maintain two alternative
theories–only one of which was charged–and urge the jury to convict upon either
of them. Rather, the government presented a single, consistent theory of
conviction throughout: from his position as Executive Director of PPRD,
Thompson obtained Cleveland’s labor with his consent and under color of right,
while authorizing payment of PPRD funds to Cleveland in exchange. While
Cleveland’s labor is the only property relevant to the element of extortion,
Thompson’s appropriation of both forms of property was part of a single scheme.
Accordingly, there is no fatal variance between the indictment and the proof
presented at trial.
B.
Thompson argues alternatively that the government failed to prove that
Cleveland was deprived of property within the meaning of the Hobbs Act. As
noted above, the Hobbs Act defines “extortion” to require the “obtaining of
property from another . . . .” 18 U.S.C. § 1951(b)(2). Since “[t]he concept of
property under the Hobbs Act has not been limited to physical or tangible
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things,” United States v. Stephens, 964 F.2d 424, 433 n.20 (5th Cir. 1992); United
States v. Nadaline, 471 F.2d 340, 344 (5th Cir. 1972), the labor provided by
Cleveland qualifies as “property” within the meaning of the Hobbs Act. See
United States v. Delano, 55 F.3d 720, 731 (2d Cir. 1995) (noting that public
official had received “payment” in the form of tree removal services).
Nevertheless, Thompson argues that Cleveland was not “deprived” of property,
since he was compensated for the labor he performed. In other words,
Cleveland’s compensation precludes a finding that he was deprived of property.
Thompson acknowledges that a number of Hobbs Act cases establish a
common pattern in which the victim of extortion is deprived of property, but
obtains some sort of benefit in exchange. See, e.g., id. (tree removal company
removed trees with the understanding that the official would assign jobs “which
the company ordinarily would not have received”); Stephens, 964 F.2d at 431
(extorted victim paid defendant based on her belief that defendant could “take
care” of the legal charges against her). Thompson asserts, however, that the
benefit in such cases is “incidental” and thus different in kind from this case,
where Cleveland billed PPRD for the work he performed and was “paid in full.”
Thompson appears to concede that the existence of a quid pro quo arrangement
does not, by itself, preclude a finding of extortion. Rather, he contends that the
present case is “fundamentally different” since the exchange here involved full
compensation for Cleveland’s labor. This proffered distinction–between
“incidental” benefits and “full” compensation–is not contemplated by the text of
the statute and lacks support in reason. Hobbs Act liability should not turn on
the value of the deal obtained by extorted victims.
A plain reading of the Hobbs Act suggests that extortion is complete once
property is obtained by the defendant. See 18 U.S.C. § 1951(b)(2). As the
Supreme Court has stated, extortion “is completed at the time when the public
official receives a payment in return for his agreement to perform specific official
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acts.” Evans v. United States, 504 U.S. 255, 268, 112 S. Ct. 1881, 1889 (1992).
Whether or not the quid pro quo is ultimately fulfilled is not relevant to a finding
of extortion. Cf. id. (“[F]ulfillment of the quid pro quo is not an element of the
offense.”). The fact that Cleveland was subsequently paid for his labor does not
preclude a finding that Thompson deprived Cleveland of property. See United
States v. French, 628 F.2d 1069, 1074 (8th Cir. 1980) (noting that extortionate
conduct is “no less extortion because the ‘victim’ may in some sense receive an
economic benefit . . . .”); Delano, 55 F.3d at 731.
Equally unavailing is Thompson’s reliance on Scheidler v. National
Organization For Women, Inc., 537 U.S. 393, 404, 123 S. Ct. 1057, 1065 (2003).
In Scheidler, the Court held that defendants had not committed extortion under
the Hobbs Act by interfering with women’s access to abortion clinics, since
defendants had not “obtained” any property in so doing. Id. at 404-05, 123 S. Ct.
at 1065-66. The Court acknowledged that while defendants “may have deprived
or sought to deprive [abortion clinics] of their alleged property right of exclusive
control of their business assets,” the defendants had not acquired any such
property. Id. at 405, 123 S. Ct. at 1066.
While it is true that interference with a property or liberty interest is not
sufficient to create Hobbs Act liability, Scheidler fails to support Thompson’s
argument. Scheidler clarified that the “obtaining” requirement of extortion
under the Hobbs Act “require[s] not only the deprivation but also the acquisition
of property.” Id. at 404, 123 S. Ct. at 1065. This explains why the protesters’
interference with abortion clinics and their patients was not sufficient to create
Hobbs Act liability, particularly because they did not “acquire” any property in
so doing. The present case, however, is distinguishable, since Thompson clearly
acquired property through his scheme. Cleveland performed a host of tasks at
Thompson’s home and farm, which inured to Thompson’s personal benefit.
Thus, Thompson did not merely interfere with Cleveland’s liberty interests, but
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actually obtained the direct benefits of his labor. Scheidler thus provides no
support for Thompson’s argument. See United States v. Gotti, 459 F.3d 296, 300
(2d Cir. 2006) (noting that Scheidler–“far from holding that a Hobbs Act
extortion could not be premised on the extortion of intangible property
rights–simply clarified that for Hobbs Act liability to attach, there must be a
showing that the defendant did not merely seek to deprive the victim of the
property right in question, but also sought to obtain that right for himself”).
Consequently, we hold that the compensation paid to Cleveland for his
labor does not preclude a finding that Thompson “obtained” property within the
meaning of the Hobbs Act. The evidence was sufficient to support the jury’s
verdict.
IV. Conclusion
For these reasons, Thompson’s conviction is AFFIRMED.
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