United States v. Frost

United States Court of Appeals,

Eleventh Circuit.

Nos. 93-9382, 94-8385.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gary FROST, Major, George Johnson, Edward Wayne Martin,
Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gary FROST, Major, Defendant-Appellant.

Aug. 25, 1995.

Appeals from the United States District Court for the Middle
District of Georgia. (No. CR 93-31-MAC(WDO), Willbur D. Owens, Jr.,
Judge.

Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and YOUNG*, Senior District Judge.

PER CURIAM:

In the first of these two related appeals, Defendants-

Appellants Gary Frost and George Johnson appeal from their

convictions and sentences; Defendant-Appellant Edward Wayne Martin

appeals his sentence. In the second case, Defendant-Appellant

Frost appeals from the district court's denial of his Motion for

New Trial based on newly discovered evidence.

I. FACTS

The three Appellants were accused of conspiring to mail a

videotape and a note to William Douglas, a member of the Warner

Robins City Council, for the purpose of causing Douglas to resign

*
Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
from the City Council.1 All three Appellants were charged with

Attempt to obstruct, delay and affect commerce in violation of 18

U.S.C. section 1951 (the Hobbs Act), conspiracy to commit an

offense against the United States in violation of 18 U.S.C. 371 by

mailing a threatening communication in violation of 18 U.S.C.

section 876, and mailing a threatening communication in violation

of 18 U.S.C. section 876. Johnson and Martin were also charged

with making false statements before a federal grand jury in

violation of 18 U.S.C. section 1623. The jury returned a verdict

of guilty on all counts as to these Appellants.

The evidence at trial showed the following. Appellant Martin

was elected Mayor of the town of Warner Robins, Georgia, in 1988.

At the time of Martin's election, Douglas was a City Council member

and had so served for twelve years; Appellant Johnson was the

Police Chief of Warner Robins; and Appellant Frost was a police

department Major in charge of the patrol and criminal investigative

divisions. As Mayor, Martin supervised Johnson; as Police Chief,

Johnson supervised Frost.

After taking office as Mayor, disputes arose between Martin

and city council members as to the manner in which Warner Robins

should be run.2 Douglas drafted—and the council passed—several

ordinances which reduced the Mayor's spending authority. On April

1
The videotape showed Douglas, a married man, in a car with
a woman who was not his wife. Douglas was meeting with the woman
on federal property when, unbeknownst to Douglas, the tape was
made.
2
In addition, there was testimony that "rumors" were being
circulated to the effect that Douglas was considering running for
the office of mayor in the next election.
22, 1991, four months after Douglas had sponsored the ordinances,

he received a package through the mail which contained a videotape

and an anonymous handwritten note which stated that the videotape

would be given to the Mayor and Douglas' wife unless Douglas

resigned immediately from the city council. Douglas did not resign

from the council, nor did he mention the tape and note to anyone.

Mark Street, an employee of the City of Warner Robins,

testified that he had picked up the city mail on April 22, 1991,

and delivered it to City Hall; while it was not Street's normal

duty to deliver the mail, he did so because the employee who

normally had mail duty was absent from work that day. Later that

day, Street testified, he was called by Frost, who asked whether

Douglas had received a package in the mail. When Street responded

affirmatively, Frost asked Street to come to the Police Department

and tell him what had happened. When Street met with Frost and

related to him Douglas' reaction to the package, Street testified,

Frost made a statement to the effect that Frost "bet [Douglas] was

upset." Appellant Johnson was present during this conversation.

On May 1, 1991, Martin called Douglas and requested that

Douglas come to his office. Upon Douglas' arrival, Martin told

Douglas that he had received a videotape in the mail depicting

Douglas "in a compromising situation." A city council meeting was

held that evening, during which Douglas informed the other members

of the council of the videotape and note he had received. The

council rejected Douglas's offer to resign.

At the next city council meeting, Martin pulled Douglas aside

and asked him if had received any further communication concerning
the videotape. Douglas recalled that, when he advised Martin that

he had not received any further communication, Martin responded:

"I'm not suggesting that you do this, but if you resign, maybe they

won't send a copy to your wife."

Appellants Frost and Johnson did not dispute that the

videotape had in fact been made on April 16, 1991, at the direction

of Johnson and with Frost's participation, using a video camera

owned by the Warner Robins Police Department. Testimony at trial

established that Johnson had two copies of the videotape made on

the same day the videotape was filmed; later that day, Frost and

Johnson assembled in Martin's office to view one copy of the tape,

which was left with Martin after the viewing.

Expert testimony showed that the copy of the tape sent to

Douglas was a "first generation" copy, i.e., one made directly from

an original tape. The evidence reflected that, as of April 19,

1991, the day the tape was mailed to Douglas, three such copies of

the tape existed. The original tape was in the possession of

Johnson; the three copies consisted of a copy that Johnson had and

which he later gave to his former secretary; a copy given to Wiley

Bowman, the Director of Public Works for Warner Robins, who had

participated in the surveillance of Douglas; and a copy given to

Martin on April 16, 1991.

The evidence revealed that the only one of the three

videotapes unaccounted for after April 19, 1991, and, therefore,

the only one which could have been sent to Douglas on that date,

was the tape which had been in the possession of Martin. In

addition, a fingerprint on the back side of the anonymous note was
identified as Martin's.

Daniel Hart testified that, in early 1992, while he was a

Warner Robins police officer, Hart asked Johnson whether Johnson

believed a rumor that Douglas was planning to run for Mayor in the

impending election. Hart testified that Johnson responded that

Douglas would not be running for the office of Mayor because "[w]e

have a tape, a videotape of Douglas and his girlfriend in a

car...." Hart also testified that Johnson stated during the same

conversation that Douglas "had been told to resign his council

seat" and would not run for that position again.

The evidence further revealed that, during the investigation,

Martin advised Wiley Bowman to destroy Bowman's copy of the tape

and that Martin had destroyed a copy that he obtained subsequent to

the mailing of the videotape to Douglas. During the ensuing

investigation, Martin and Johnson appeared before the federal grand

jury. Martin and Johnson were charged with and convicted of making

false statements under oath when questioned concerning the matter

under Counts 4 and 5, respectively.

After the convictions, the United States Probation Department

prepared presentencing investigation reports which were presented

to all three Appellants. In calculating the applicable guidelines,

the Probation Department used the guidelines manual effective

November 1, 1993, since the Appellants were to be sentenced after

that date. The Probation Department used section 2B3.3 of the

United States Sentencing Guidelines to determine the base offense

level. Additionally, the Probation Department factored in for each

Appellants a two-point upward adjustment under guidelines section
3B1.3 for abuse of a position of trust. All Appellants objected to

the use of the 1993 guidelines manual and argued that the 1991

manual should be used since the crime occurred during that year.

Several hours prior to the hearing, the court notified all counsel

that the court considered 2B3.2, rather than 2B3.3, as the proper

guideline for computing the base offense level.

After hearing all the arguments of counsel, the court agreed

to apply the guidelines contained in the 1991 manual; however,

over the objection of the Appellants, the court used 2B3.2 as the
guideline for computing the base offense level, rather than 2B3.3,

which was the section utilized by the Probation Department in its

presentence reports. The district court enhanced each Appellant's

offense level two points for abuse of a position of trust,

sentencing Appellants Martin and Johnson to 51 months and Appellant

Frost to 33 months in the custody of the Bureau of Prisons.3

II. DISCUSSION

3
On Count 1, Martin and Johnson each were sentenced to 51
months' imprisonment followed by three years of supervised
release; on Count 2, 51 months' imprisonment to be served
concurrently with the sentence in Count 1, followed by three
years of supervised release; and on Count 3, 24 months'
imprisonment to be served concurrently with the sentences on
Counts 1 and 2, and on their respective perjury counts, followed
by three years of supervised release. On Count 4, which charged
Martin with perjury, he was sentenced to 51 months' imprisonment
to be served concurrently with the sentences in Counts 1 and 2,
followed by three years of supervised release; Johnson received
the same sentence on Count 5, in which Johnson was charged with
perjury.

On Count 1, Frost was sentenced to 33 months'
imprisonment followed by three years of supervised release;
on Count 2, 33 months' imprisonment to be served
concurrently with the sentence in Count 1, followed by three
years of supervised release; on Count 3, 24 months'
imprisonment to be served concurrently with the sentence in
Counts 1 and 2, followed by 3 years of supervised release.
 4
As noted above, each Appellant appeals his sentence.

Appellants Frost and Johnson also raise numerous issues relating to

their convictions. We find that the evidence was sufficient to

support the verdicts against Appellants Frost and Johnson; we

discuss certain of the issues raised concerning their convictions

below.5

A. REFUSAL TO DISMISS THE INDICTMENT.

We address the allegations of insufficiency of the indictment

only with respect to the interstate nexus/Hobbs Act issue. The

other arguments as to the sufficiency of the indictment are without

merit and do not warrant further discussion.

Appellants allege as reversible error the fact that the

district court did not dismiss the indictment prior to trial on the

basis that it fails to contain any allegation that the City of

Warner Robins was engaged in interstate commerce. An indictment is

sufficient if it contains the elements of the offense charged in a

manner which fairly informs the defendant of the charges against

which he must defend and enables the defendant to enter a plea

which will bar future prosecution for the same offense. United

States v. Elkins, 885 F.2d 775 (11th Cir.1989), cert. denied, 494

U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990). Our review of

4
As noted, Appellant Martin appeals only his sentence.
5
After a thorough review of the record, we further find
that: the district court did not abuse its discretion in
refusing to disclose grand jury proceedings prior to the
disclosure of material under the Jencks Act; the district court
did not err in excluding written evidence of Frost's oath as a
police officer; and the district court did not abuse its
discretion by excluding the testimony of certain witnesses.
These issues require no further discussion.
the indictment in this case leads to our conclusion that the

indictment adequately charged the defendants, and the district

court did not err in denying the motion to dismiss it.

B. EVIDENTIARY CHALLENGES.

1. Jurisdiction.

Appellants argue that the evidence was insufficient to

support the Hobbs Act jurisdictional allegations contained in the

indictment. Appellants were charged with an attempt to obstruct or

affect commerce by extortion. "The Hobbs Act applies to extortion

wherein the perpetrator "... in any way or degree obstructs, delays

or affects commerce or the movement of any article or commodity in

commerce....' " United States v. Farrell, 877 F.2d 870, 875 (11th

Cir.1989), cert. denied, 493 U.S. 922, 110 S.Ct. 289, 107 L.Ed.2d

268 (1989) (quoting 18 USC section 1951(a)). Cases construing the

Hobbs Act have repeatedly held that the statute's plain terms

forbid interference with interstate commerce in any degree. United

States v. Summers, 598 F.2d 450 (5th Cir.1979). "Only a de minimis

nexus with interstate commerce is required." Farrell, 877 F.2d at

875 (citing United States v. Jackson, 748 F.2d 1535 (11th

Cir.1984)).

Where attempted extortion or conspiracy to extort are
charged, the interstate nexus may be demonstrated by evidence
of potential impact on interstate commerce or by evidence of
actual, de minimis impact. Id. Potential impact is measured
at the time of the attempt, i.e., when the extortion demand is
made, based on the assumed success of the intended scheme.
Id. A sufficient potential impact exists when there is
evidence of "a plan to embark upon a course of extortionate
behavior likely to have the natural effect of obstructing
commerce."

Id. (citations omitted).

Had the charged extortion scheme succeeded, the likely natural
effect was that interstate commerce would have been affected. The

evidence was sufficient to show that the goal of the extortion was

to have William Douglas resign his Warner Robins City Council seat,

and that the actions of that city council, at least to a minimal

degree, affect interstate commerce. The question then becomes

whether Douglas' resignation would have had a potential impact on

the operation of the city. We conclude that the potential impact

of Douglas' resignation as a city council member was sufficient to

provide the necessary jurisdictional element under the Hobbs Act.

Accordingly, we hold that the jurisdiction of the trial court was

valid.

2. Expert testimony.

Appellant Johnson asserts that the district court abused its

discretion in excluding as not relevant the proffered expert

testimony of a Georgia attorney who would have testified as to his

opinion that the videotape was insufficient evidence to warrant

prosecution of Douglas under Georgia law. Appellant Johnson

asserts that this testimony would have bolstered his testimony as

well as the testimony of Appellant Frost that they conducted

surveillance of and videotaped Douglas as part of a legitimate

criminal investigation being conducted by the Warner Robins Police

Department.

The district court "has broad discretion to exclude expert

testimony, and his action will be upheld unless it is manifestly

erroneous." Hibiscus Associates Ltd. v. Bd. of Trustees of

Policemen and Firemen Retirement System, 50 F.3d 908, 917 (11th

Cir.1995). There was no contention by the prosecution in this case
that the police did not have a right to investigate criminal

conduct; further, the jury was properly instructed that "police

officers have the right to investigate anyone who is suspected of

engaging in criminal behavior." Because no issue was raised as to

whether Douglas' behavior was prosecutable, we find that the

district court did not abuse its discretion in prohibiting the

admission of this proffered expert testimony.

3. Limiting cross-examination of witnesses.

Appellants Johnson and Frost both assert that the district

court erred by not allowing their respective defense counsel

greater latitude in cross-examination and impeachment of government

witnesses. Frost contends that the limitations placed upon his

counsel's cross-examination of Mark Street about possible bias was

an abuse of the district court's discretion; Johnson makes the

same claim with respect to the cross-examination of Daniel Hart.

Frost also asserts that the district court abused its discretion

when it excluded as not relevant the cross-examination of William

Douglas about prior misconduct with women and about the employment

of his companion in the videotape. In addition, Frost maintains

the district court denied him the right to impeach witness Street

for bias by disallowing as not relevant during cross-examination

one question of witness Sherry Schmitz concerning whether or not

Mark Street had told her someone was blaming him for the blackmail

incident.

The district court's discretion in limiting the scope of

cross-examination is subject to the requirements of the Sixth

Amendment. United States v. Diaz, 26 F.3d 1533, 11539 (11th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1110, 130 L.Ed.2d

1075 (1995). "The Confrontation Clause guarantees criminal

defendants an opportunity to impeach through cross-examination the

testimony of witnesses for the prosecution." United States v.

Baptista-Rodriguez, 17 F.3d 1354, 1370 (11th Cir.1994). The

defendant's right to cross-examination, however, is not without

limitation; he is entitled only to an opportunity for effective

cross-examination, not cross-examination that is effective "in

whatever way, and to whatever extent, the defense might wish." Id.

at 1366 (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct.

2658, 2664, 96 L.Ed.2d 631 (1987)). "A defendant's confrontation

rights are satisfied when the cross-examination permitted exposes

the jury to facts sufficient to evaluate the credibility of the

witness and enables defense counsel to establish a record from

which he can properly argue why the witness is less than reliable."

Id. at 1371. Once there is sufficient cross-examination to satisfy

the Confrontation Clause, further questioning is within the

district court's discretion. Diaz, 26 F.3d at 1539. The trial

judge has wide latitude to impose reasonable limitations on

cross-examination based upon concerns such as relevancy, and those

restrictions are reviewed solely for abuse of discretion.

Baptista-Rodriguez, 17 F.3d at 1370-71.

A review of the record reflects that all prosecution witnesses

were thoroughly and effectively cross-examined by all defense

counsel. Appellants have not shown that the restrictions placed on

defense counsel were an abuse of the district court's discretion.

4. Improper prosecutorial remarks.
 Both Appellants Frost and Johnson contend that the district

court abused its discretion in denying the motion for mistrial made

after the government's attorney made the following comment to the

jury during closing argument:

What they did to William Douglas and what they would have
done to others is no different than what the Gestapo did in
World War II. It is no different than what authorities in
Third World countries do to the people under their protection.

We review the record in its entirety to determine if the

statements were improper and, if so, whether they rendered the

trial fundamentally unfair. A prosecutor's argument renders a

trial unfair if "there is a reasonable probability that [the

remarks] changed [the] outcome of the case." Baxter v. Thomas, 45

F.3d 1501, 1508 n. 15 (11th Cir.1995) (quoting Brooks v. Kemp, 762

F.2d 1383, 1402 (11th Cir.1985) (en banc), vacated, 478 U.S. 1016,

106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), reinstated on remand, 809

F.2d 700 (11th Cir.) (en banc) (per curiam), cert. denied, 483 U.S.

1010, 107 S.Ct. 3240, 97 L.Ed.2d 744 (1987)).

Although we think the prosecutor was ill-advised to make a

reference to Nazi Germany during her closing argument, we are

convinced, upon a review of that particular comment in context and

the entire record, that Appellants have not shown that any of the

prosecutor's remarks rendered their trial fundamentally unfair.

C. FROST'S MOTION FOR SEVERANCE.

Appellant Frost appeals the district court's denial of his

motion for severance, which was made both prior to and during his

trial. We may reverse a district court's denial of a motion for

severance only if we find that the court abused its discretion.

United States v. Adams, 1 F.3d 1566 (11th Cir.1993), cert. denied,
--- U.S. ----, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994).

Appellant Frost argues that this case presented mutually

exclusive defenses. Specifically, Frost asserts, handwriting

exemplars introduced into evidence by co-defendant Martin in which

Frost had misspelled the word "councilman" as "counselman", the

same as it had been spelled by the writer of the blackmail note,

was highly prejudicial and damaging to Frost. We address the

nature of this evidence in section F, the portion of this opinion

discussing Frost's motion for a new trial.

Joinder of defendants is proper "if they are alleged to have

participated in the same ... series of acts or transactions

constituting an offense or offenses." F.R.Crim.P. 8(b). The

defendant attempting to establish that the district court abused

its discretion in denying a motion for severance carries a heavy

burden. This Court has held:

In conspiracy cases like this one, the general principle is
well-settled that "persons who are charged together should
also be tried together." In evaluating a motion for
severance, this court must determine whether the prejudice
inherent in a joint trial outweighs the interests in judicial
economy. To establish that the district court's balancing of
interests was an abuse of discretion, [the defendant] must
"demonstrate that a joint trial resulted in specific and
compelling prejudice to the conduct of his defense."

Adams, 1 F.3d at 1578 (quoting United States v. Saget, 991 F.2d

702, 707 (11th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 396,

126 L.Ed.2d 344 (1993)). By proving that the defenses in the case

were "antagonistic to the point of being irreconcilable and

mutually exclusive," a defendant can meet this burden. United

States v. Farrell, 877 F.2d 870, 876 (11th Cir.), cert. denied, 493

U.S. 922, 110 S.Ct. 289, 107 L.Ed.2d 268 (1989) (quoting United
States v. Romanello, 726 F.2d 173, 177 (5th Cir.1984)). "The

essence or core of the defenses must be in conflict, such that the

jury, in order to believe the core of one defense, must necessarily

disbelieve the core of the other." Id.

As noted, we have discussed in section F of this opinion the

exemplars that Frost asserts prejudiced his defense, and we find

that the defenses offered at trial by Frost and Martin were not

mutually exclusive and antagonistic. Accordingly, we conclude that

the district court did not abuse its discretion in refusing to

sever.

D. JURY INSTRUCTIONS.

With respect to Appellants' contentions regarding the jury

instructions in this case, we note that the trial court has broad

discretion in formulating a jury charge. Christopher v. Cutter

Laboratories, 53 F.3d 1184 (11th Cir.1995). We have reviewed the

instructions as a whole and determined that the instructions fairly

and adequately addressed the issues and correctly stated the law.

The jury was properly instructed that "police officers have the

right to investigate anyone who is suspected of engaging in

criminal behavior," and that "[p]olice officers ... do not have the

right to use the results of such an investigation for an illegal

purpose."

E. THE ALLEN CHARGE.

This Circuit allows the use of Allen [Allen v. U.S., 162 U.S.

492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) ] charges. United States v.

Elkins, 885 F.2d 775 (11th Cir.1989), cert. denied, 494 U.S. 1005,

110 S.Ct. 1300, 108 L.Ed.2d 477 (1990). This Court's inquiry on
appeal of a district court's decision to give an Allen charge is

limited to evaluating the coercive impact of the charge; thus, the

question we address is whether, under the totality of the

circumstances and language of the charge, the jury was unduly

coerced into reaching a verdict. Id.; United States v. Chigbo,38

F.3d 543 (11th Cir.1994).

The language the district court used in this case did not

deviate from the wording used in accepted Allen charges, and the

totality of the circumstances do not indicate coercion. We

conclude that the district court's Allen charge did not unduly

coerce the jury into reaching a verdict.

F. FROST'S MOTION FOR NEW TRIAL.

After filing the appeal of his conviction and sentence,

Appellant Frost filed with the district court a motion for new

trial based on newly discovered evidence. Frost cited three

grounds for his motion: (1) impeachment evidence of government

witness Mark Street; (2) evidence that a fourth person wrote the

extortion note; and (3) perjury of co-defendant Martin in denying

that he knew the identity of the author of the threatening note.

In its order, the district court noted that Frost's appeal

removed the district court's general jurisdiction under Federal

Rules of Criminal Procedure 33, and that it could not grant a

motion for new trial absent a remand from this Court. The Court

then proceeded to consider and deny the motion on its merits. The

district court did not hold a hearing on the motion. Frost filed

a second appeal, contending that the district court erred in

denying his motion for a new trial.
 While Rule 33 expressly prohibits the granting of a motion for

new trial absent a remand from the appellate court, the district

court acted within its jurisdictional power in denying the motion.

United States v. Hersh, 415 F.2d 835 (5th Cir.1969).6

A motion for a new trial is committed to the sound discretion

of the trial court and will not be overruled on appeal absent an

abuse of discretion. United States v. Garcia, 13 F.3d 1464 (11th

Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2723, 129 L.Ed.2d 847

(1994).

In order to justify the granting of a new trial based on

newly discovered evidence in a criminal trial, the defendant must

satisfy a five-part test: (1) the evidence must have been

discovered subsequent to the trial; (2) the movant must have

exercised due diligence in discovering the evidence; (3) the

evidence must not be merely cumulative or impeaching; (4) the

evidence must be material to the issues before the court; and (5)

the evidence must be such that it would probably produce a new

result. United States v. DiBernardo, 880 F.2d 1216 (11th

Cir.1989). Moreover, the district court cannot grant a motion for

a new trial based on newly discovered evidence once it has

determined that the movant has failed to satisfy any part of the

test. United States v. Reed, 887 F.2d 1398, 1404 (11th Cir.1989),

cert. denied, 493 U.S. 1080, 110 S.Ct. 1136, 107 L.Ed.2d 1041

(1990).

6
This Court has adopted as binding precedent decisions of
the former Fifth Circuit Court of Appeals handed down prior to
the close of business on September 30, 1981. Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).
 In his motion for a new trial, Frost cited as newly

discovered evidence certain employment records of the employee who

normally delivered the mail to the Warner Robins City Hall, Victor

Irwin. While these records, which were attached by Frost to his

motion, show that Irwin did not clock into work at all on April 22,

1991, the day on which the evidence established that Street

delivered the package containing the videotape and extortion note,

the records also show that he was not charged any leave for that

day. Frost argues that these records were sufficient to have

caused the jury to acquit Frost.

Assuming without deciding that this evidence was not available

to Frost and was in fact newly discovered, Frost fails to satisfy

the five-pronged test. Frost's apparent argument is that the

records show that Street did not pick up and deliver the mail on

April 22, 1991, as he testified and, therefore, Street was not

truthful in his testimony. As the district court noted, no

evidence has been proffered to show that Street did not deliver the

mail that day. In his own testimony, Frost stated that Street had

related to him on April 22, 1991, that Street had delivered the

mail because the employee who usually did so was absent.

Additionally, two other witnesses called by Frost at trial

testified that Street had related that he had delivered the mail on

April 22, 1991. The evidence asserted by Frost as newly discovered

does not contradict Street's testimony that he delivered the mail

on the day in question. Even assuming that the evidence proffered

by Frost in support of his motion could be viewed as impeaching,

this evidence concerning the possibility that Irwin was not charged
with leave even though he had not clocked into work on that day is

not material and would not have been likely to have resulted in

Frost's acquittal.

Appellant Frost asserts a second ground in support of his

motion for a new trial. Subsequent to the trial of this case,

Frost's attorneys established that Curtis McCollum, a Warner Robins

minister, had written the blackmail note involved in this case.

McCollum entered a guilty plea to the offense of misprision of a

felony and stated under oath that he had written the note at the

urging of Appellant Martin. Appellant Frost asserts that, at

trial, significant emphasis was placed on the fact that in the

blackmail note, the word "council" had been misspelled as "counsel"

and that the evidence established that Frost was the only person of

the all those whose handwriting exemplars had been taken who had

misspelled that word. Because it was later conclusively

established that McCollum had written the note, Frost argues, he is

entitled to a new trial.

We agree with the district court that the evidence that

McCollum wrote the note does not entitle Frost to a new trial.

There was no evidence presented or argument made by the government

connecting Frost to the actual writing of the note. The

government's handwriting expert stated that he could not render an

opinion as to who had written the note, and Frost's own handwriting

expert testified that Frost had not written the note. The

exemplars were offered by Martin's attorney and admitted without

objection by Frost; no mention of Frost's misspelling of the word

"council" was made to the jury. We find that this evidence was not
material to Frost's guilt, and was not likely to result in Frost's

acquittal.

Frost's final argument in support of his motion was that he

was prejudiced by and entitled to a new trial because of the

perjury of co-defendant Martin. Frost asserts that, if Martin had

testified truthfully that he had caused the note to be written and

mailed, Frost would have been acquitted.

As the district court noted in its order denying Frost's

motion, Frost presumes in making both his second and third

arguments for a new trial that he "was convicted based solely on an

assumption that he wrote the extortion note." The government

neither attempted or needed to prove authorship of the note to

carry its burden of proof; in fact, the government introduced

evidence that it was impossible to tell who wrote the note. The

testimony of Mark Street was sufficient evidence from which the

jury could conclude beyond a reasonable doubt that Frost knowingly

participated in the scheme to obtain damaging evidence on Douglas

and use it in an extortionate manner, regardless of the fact that

Martin may have acted alone in causing the note to be written and

mailed. Accordingly, we find that this evidence was not material

and would not have resulted in an acquittal of Frost.

For the reasons discussed, we find that the district court did

not abuse its discretion in denying Frost's motion for a new

trial.7

7
Frost and the government fully briefed the motion for new
trial to the court, and the district court had available the
entire record from the jury trial. The record of the trial fully
supported the district court's findings as to each ground of the
motion for new trial. Accordingly, we find that the district
G. SENTENCING.

Appellants also challenge their sentences on two grounds. In

sentencing guidelines cases, we review the district court's

findings of fact for clear error and its application of the law to

those facts de novo. United States v. Williams,51 F.3d 1004 (11th

Cir.1995).

(1). In the first of these challenges, Appellants maintain

that the district court erred in utilizing section 2B3.2 of the

United States Sentencing Guidelines ("Extortion by Force or Threat

of Injury or Serious Bodily Harm"), rather than section 2B3.3

("Blackmail and Similar Forms of Extortion"), in establishing the

base offense level for each Appellant's convictions.

For the following reasons, we agree with the Appellants that

section 2B3.3, rather than 2B3.2, is applicable to establish the

base offense level in this case.

First, in Counts 2 and 3, Appellants were convicted under 18

U.S.C. 876 for mailing a written communication containing a "threat

to injure the reputation of William Douglas." This conduct is

contemplated by the fourth paragraph of section 876, which provides

a maximum penalty of two years' incarceration for one who causes a

communication to be delivered containing a threat "to injure the

property or reputation of the addressee." This penalty is less

severe—and therefore inconsistent with—the minimum penalty of 27

months' incarceration provided for under section 2B3.2 of the

sentencing guidelines.

court did not abuse its discretion in denying the motion without
a hearing.
 Second, we observe that Application Note 2 for section 2B3.2

provides as follows:

This guideline applies if there was any threat, express
or implied, that reasonably could be interpreted as one to
injure a person or physically damage property, or any
comparably serious threat, such as to drive an enterprise out
of business. Even if the threat does not in itself imply
violence, the possibility of violence or serious adverse
consequences may be inferred from the circumstances of the
threat or the reputation of the person making it. An
ambiguous threat, such as "pay up or else," or a threat to
cause labor problems, ordinarily should be treated under this
section.

The threatened conduct in this case was non-violent; no physical

threat was made, and any economic threat flowing from the potential

damage to the reputation of Douglas was not so severe as to

threaten the existence of Douglas or the city council. On the

other hand, the Application Note to section 2B3.3 provides that

2B3.3 applies "to blackmail and similar forms of extortion where

there is clearly no threat of violence to person or property."

Because the instant case involved blackmail with no threat of

violence, we find that section 2B3.3 is properly applied to the

type of conduct involved herein.

(2). Appellants each challenge the district court's upward

adjustment of their offense levels by two points for abuse of a

position of trust. Sentencing guidelines section 3B1.3, entitled

"Abuse of Position of Trust or Use of Special Skill," provides:

If the defendant abused a position of public or private trust,
or used a special skill, in a manner that significantly
facilitated the commission or concealment of the offense,
increase by 2 levels.

Application Note 1 to section 3B1.3 provides:

The position of trust must have contributed in some
substantial way to facilitating the crime and not merely have
provided an opportunity that could as easily have been
 afforded to other persons. This adjustment, for example,
would not apply to embezzlement by an ordinary bank teller.

In this case, all three Appellants facilitated the commission

of the crimes when they conspired with each other, using knowledge

and resources available as a result of their positions as police

officers and as Mayor, to commit and attempt to conceal the crimes

of which they were convicted. The results of the surveillance were

used in an illegal manner in an attempt to gain political advantage

and thereby influence the manner in which the City of Warner Robins

was run. Clearly, this constituted an abuse of the public trust.

Under these facts, we hold that the district court's imposition of

the two-point enhancement was not clearly erroneous.

III. CONCLUSION

Any issues not addressed herein have been found to be without

merit. For the reasons expressed, we AFFIRM the convictions of

Appellants Frost and Johnson and AFFIRM the denial of Appellant

Frost's Motion for New Trial; We REVERSE the sentences of

Appellants Frost, Johnson and Martin and REMAND to the district

court for resentencing consistent with this opinion.