United States v. Turner

United States Court of Appeals
For the First Circuit

No. 11-1129

UNITED STATES,

Appellee,

v.

CHARLES TURNER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Thompson, Circuit Judges.

Charles W. Rankin, with whom Michelle Menken and Rankin &
Sultan were on brief, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

July 11, 2012
 LYNCH, Chief Judge. A federal jury convicted Charles

Turner of one count of attempted extortion under color of official

right in violation of the Hobbs Act, 18 U.S.C. § 1951, and three

counts of making a false statement in violation of 18 U.S.C.

§ 1001. Turner, at the time of his trial and since 2000, was a

member of the Boston City Council. The indictment charged Turner

with making false statements to FBI agents and accepting $1,000 in

exchange for performing official acts to assist a local businessman

in obtaining a liquor license for a planned supper club in the

Roxbury neighborhood of Boston. That businessman, Ronald Wilburn,

was in fact cooperating with the FBI.

Turner's appeal challenges his convictions and his

sentence. As to the Hobbs Act count, he argues both (1) that the

district court's jury instructions on two elements (reciprocity and

interstate commerce) constituted plain error, so he is entitled to

a new trial, and (2) there was insufficient evidence to satisfy

those same two elements and so he is entitled to a judgment of

acquittal on that count. He does not seek a judgment of acquittal

on the three false statement counts. Turner also argues he is

entitled to a new trial based both on purported errors in the

admission of certain evidence and on the prosecution's closing

argument. Finally, Turner challenges his thirty-six month sentence

based on a contention that the government impermissibly sought

vindictively to punish him.

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 We affirm Turner's convictions, deny his requests for a

new trial, and affirm his sentence.

I.

The evidence presented at trial is described in the light

most favorable to the jury's guilty verdict. See United States v.

Manor, 633 F.3d 11, 12 (1st Cir. 2011).

In early 2007, before he began working with the FBI,

Ronald Wilburn was attempting to secure needed local government

permission to open a supper club called Déjà Vu at the Crosstown

Development Center in the Roxbury neighborhood of Boston. Sales of

alcohol were to be a large portion of the club's revenue. Wilburn

turned to two local elected officials for support: state Senator

Diane Wilkerson and Councillor Turner; the Crosstown project was in

the districts each represented. Wilburn applied for an all-alcohol

license1 from the Boston Licensing Board ("Board") in January 2007

and supported his application with a letter from Turner. The

letter was prepared by Wilburn's lawyer and signed by Turner;

Turner was not paid for the letter. Wilburn had a hearing before

the Board in March 2007. In April the Board rejected his

application because, it said, the location was not conducive to

having a supper club and because the venue was too large. Wilburn

1
There were two types of liquor licenses discussed at trial.
One was a beer and wine license, the other an all-alcohol license,
which allows the holder to sell all kinds of alcohol, including
beer, wine, cordials, and hard liquor. Wilburn sought the latter,
which is also called an "A" license.

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submitted a new floor plan to the Board in May or June of 2007, but

the Board did not change its decision.

The FBI had received information that Wilburn and a

business associate had made payments to Senator Wilkerson in

exchange for her help with an earlier business venture and in

obtaining a lease for the supper club space at the Crosstown

project. The FBI approached Wilburn with this information, and

Wilburn began working with the FBI in late February 2007. At the

request of the FBI, Wilburn met with Wilkerson on five occasions,

starting on June 5, 2007, and offered her money in exchange for her

assistance in securing an all-alcohol license for his Crosstown

project supper club. Wilburn made two cash payments -- $500 and

$1000 -- to Wilkerson in June 2007.

After these payments, Wilkerson began working at both the

state and local levels to secure the license for Wilburn. One such

effort was an e-mail she sent on June 28, 2007, to some members of

the Boston City Council, including Turner, asking for a hearing on

the subject of liquor licenses. Her e-mail explained that of sixty

liquor licenses recently granted to the City of Boston by the

Massachusetts legislature, none had gone to businesses in the

Dorchester and Roxbury portions of an "Empowerment Zone" in Boston.

Her e-mail singled out two applications from those neighborhoods:

one was Wilburn's for the Déjà Vu supper club in Roxbury, and

another was for a restaurant in Dorchester called "Poppa B's."

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Turner responded positively to Wilkerson's e-mail the next day.

His purported reason for seeking to hold hearings on the denial of

liquor licenses was to investigate issues raised by liquor licenses

not going to establishments in the Empowerment Zone. During a

conversation between Wilkerson and Wilburn in early July 2007,

Wilkerson stated that Turner "was going to help out and talk to the

right people" and that he was going to set up a city council

hearing.

On July 10, 2007, Turner filed an order with the city

council requesting a hearing "to discuss the decision making

process that led to the denial of licenses in an area of the

Empowerment Zone in need of economic development." The order was

co-sponsored by several other city councillors and specifically

mentioned the Crosstown Development, where Wilburn planned to

locate his supper club. The order was introduced in the city

council on July 11, 2007, and referred to the Economic Development

and Planning Committee, chaired by Councillor Linehan.

After Turner's positive response to Wilkerson's e-mail,

the FBI asked Wilburn to meet with Turner "to feel him out to see

if he was so inclined, as Senator Wilkerson was, to accept money on

behalf of official acts." Wilburn agreed.

Wilburn first met with Turner in his Boston City Hall

office on July 25, 2007. At this time the city council hearing on

the denial of liquor licenses in the Empowerment Zone which Turner

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had requested had not yet been scheduled. During this meeting,

which was captured by a recorder Wilburn wore, Wilburn thanked

Turner for his support of Wilburn's liquor license application.

Turner said that he already "knew [Wilkerson] was working with"

Wilburn on the matter of the liquor licenses. Turner told Wilburn

that he had "everything set up to have a hearing." Turner also

connected himself to Wilkerson, saying he did not yet want to set

a date for the hearing "without her saying, yeah, that fits her

strategy." Turner asked whether Wilburn and Wilkerson were still

"interested in going forward," and Wilburn indicated that they

were. The men discussed the issue of the licenses further, then

while Wilburn waited Turner called Senator Wilkerson's and

Councillor Linehan's offices to set a date for the hearing. Even

though the hearing would involve several attendees, Turner only

coordinated schedules with Linehan, whose committee the hearing

would be before, and with Wilkerson, but not with anyone else.

During this July 25 meeting, Wilburn told Turner four

separate times that he wanted to hold a fund-raiser for Turner to

thank him for his support. Turner thanked him and they discussed

a location for the fund-raiser -- a club in Roxbury called "Slades"

-- and they talked about a time: a Saturday afternoon around 3:00

P.M. Turner said that "would be wonderful" and gave Wilburn his

wife's phone number to coordinate the fund-raiser.

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 On August 2, 2007, at the direction of the FBI, Wilburn

met with Wilkerson in a restaurant near the State House and gave

her another payment of $1,000. This payment, captured on

videotape, was in exchange for her performing official duties to

help get Wilburn a liquor license.

The next morning, August 3, 2007, Turner called Wilburn

at his home and asked Wilburn to come to Turner's Roxbury district

office later that day to talk about the liquor license. Wilburn

reported this phone call to the FBI agent handling the case, and

the agent outfitted Wilburn with an audio/visual recording device

and gave him $1,000 in fifteen bills to give to Turner at the

meeting. This phone call was not recorded. Wilburn testified that

his daughter was at home at the time he received the call and that

he did not use the recording equipment because he did not want her

to know he was working with the FBI. At trial, Turner denied that

he made the call.

That afternoon, Wilburn arrived at Turner's Roxbury

office and waited to speak with Turner. Turner's office was fairly

small, and Wilburn testified that when he did get to speak to

Turner there were other people within earshot, so he "really

couldn't say what [he] wanted to say."

Wilburn told Turner that he had "[h]eard some good things

about" Turner. Wilburn then said, "I wanted to do something for

you and your wife and I talked to Diane [Wilkerson], again this

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morning. I think we talked about that. . . . I met with her and,

uh, about the hearing that you're gonna be doing." Turner

responded with affirmative "Mm-hmm's." Wilburn also said, "I'm

really grateful because it's really hard to get somebody to stand

up for you in a fight and I just wanted to stop by and just . . .

give you, take your wife out to do dinner and do something nice."

To which Turner replied, "Oh, that'd be, yup."

The two men went on to discuss scheduling issues

regarding the hearing on the denial of liquor licenses. Turner and

Wilburn then had the following exchange:

Wilburn: I told [Wilkerson] that I'd talk to
you and, I was gonna stop by and show
my gratitude.
Turner: Mmm-hmm.
Wilburn: And then, you know, after the
hearing, I want to show my gratitude
again.

At this point in the conversation, Wilburn handed Turner the $1,000

in fifteen bills given to him by the FBI agent earlier in the day.

The jury watched a video of the handover of the cash, recorded by

a concealed camera that Wilburn wore. In the foreground is

Wilburn's hand holding rolled-up money. Wilburn then passes the

rolled-up money to Turner, who takes the money in his hand without

looking down.

The exchange continued:

Turner: Hey, (unintelligible).
Wilburn: You know, so . . .
Turner: Like that.

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 Wilburn: You, you take the wife to dinner
and . . .
Turner: All right.
Wilburn: and, and, and, uh, have some fun.
Turner: Okay.

(Ellipses in original.) The two men then discussed Wilburn's plans

to resubmit his liquor license application to the Board.

Later in the same conversation, Wilburn and Turner had

this exchange:

Wilburn: And, and I just want you to know
that, you know, you take care of me,
I take care of you.
Turner: Hey.
Wilburn: And this is, what you have is my
gratitude.
Turner: [Unintelligible.] All right.
Wilburn: Okay? And I'll talk to you after the
hearing.
Turner: Okay.
Wilburn: And we'll set something else up and
we'll go ahead.
Turner: Yeah. Sounds like fun.

At trial, Wilburn testified that when he said, "[Y]ou take care of

me, I take care of you," he meant, "Help me get the license, and I

help you out" by giving Turner "money." The two then exchanged

phone numbers.

During this conversation Turner had continued holding on

to the rolled-up cash and shifted it from his right hand to his

left hand. When he opened a green composition book to write down

Wilburn's phone number, he did so with his thumb and index finger

of his left hand, the money clutched in his fist. Turner and

Wilburn then talked some more about the details of the Crosstown

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project and had the following exchange as the conversation came to

a close:

Wilburn: But a, again, your, your support has
been tremendous . . .
Turner: Mm-hmm.
Wilburn: . . . and I'll talk to you, uh,
before the hearing.
Turner: Hey.
Wilburn: And I'll talk to you after the
hearing.
Turner: All right.
Wilburn: And we'll set up and I'll take care
of you again.
Turner: All right. Take care.

(Ellipses in original.)

After this August 3 payment of $1,000, Turner never

contacted Wilburn to speak about the money Wilburn gave him or to

give the money back. Wilburn's comments made it clear this was not

a campaign contribution, that they would talk before and after the

hearing, and after the hearing Wilburn would "take care of [Turner]

again." Further, Turner did not ever characterize this $1,000 as

a campaign contribution or list it on his disclosure forms. He

testified that he knew the campaign finance laws and knew that he

could not accept cash donations over $50 or donations in any form

from a single individual over $500 in a given year.

The following week, on August 8, 2007, Turner left

Wilburn a recorded voice message updating him on his efforts in

regard to the hearing. Turner's message informed Wilburn that the

hearing could not take place on August 15 as planned due to

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scheduling problems. But Turner assured Wilburn that the hearing

would be rescheduled.

In late July and early August, while Turner was working

on scheduling the city council hearing on liquor licenses,

Wilkerson was also making progress on getting Wilburn his liquor

license. Wilkerson had been in contact with a man named Arthur

Winn regarding Wilburn's liquor license, and Winn in turn put

Wilburn in contact with an attorney named Steven Miller. Miller

told Wilburn that for a fee of $1,500, he would "pass [Wilburn's

liquor license application] on to Daniel Pokaski," who was chairman

of the Boston Licensing Board at the time, "and not to worry about

it." Wilburn paid Miller the $1,500 with money given to him by the

FBI.

The plan was for Wilburn to accept a beer and wine

license at first, and then later he would receive an all-alcohol

license. The idea was that this would be done through a plan under

which the state legislature would grant additional liquor licenses

to the City of Boston through a "Home Rule" petition. The whole

deal was contingent on making sure that the city council hearing

Turner had been planning did not take place. Given these changes,

Wilburn and the FBI determined that it would not be in Wilburn's

interests to go forward with Turner's planned city council hearing

on the denial of liquor licenses. Wilburn testified at trial:

"[W]e didn't need a hearing. All we needed was a liquor license."

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 On August 13, 2007, Wilburn telephoned Turner and

recorded the conversation. Wilburn told Turner that he had talked

to Wilkerson and told her that he was willing to accept the beer

and wine license and wait for the all-alcohol license because "that

would be the best way for us to proceed." Turner initially

responded that he was going ahead with the hearing because he

wanted to put a "spotlight" on the licensing issue. Wilburn asked

Turner whether, if "they" could find an all-alcohol license for

Wilburn's supper club right away, Turner would then withdraw his

hearing request. Turner responded by telling Wilburn that "if they

really would like the hearing not to take place . . . and they can

give you an [all-alcohol] license . . . I would be willing to pull

back on the hearing." Turner eventually agreed to postpone his

city council hearing on the subject of denial of liquor licenses.

That hearing never took place. Wilburn received a beer and wine

license on August 15, 2007.

The "Home Rule" petition providing for new liquor

licenses for the City of Boston was brought before the city council

on September 12, 2007. On that day Wilburn, again outfitted by the

FBI with recording devices, went to City Hall to meet with Turner.

The plan was for Wilburn to offer Turner a second cash payment,

this one of $600. Before meeting with Turner, Wilburn spoke with

Turner's secretary at Turner's City Hall office, and she asked him

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if he had money. Wilburn told her he did not. The secretary then

brought Wilburn to meet Turner.

Wilburn thanked Turner for his vote in favor of the Home

Rule petition and suggested they have lunch together later in the

week because Wilburn had "a little something to give" Turner. They

made plans for lunch, Turner asked for Wilburn's phone number, and

the men parted without Wilburn's having given Turner the $600.

Wilburn testified that he did not give Turner the $600 that day

because he had already told Turner's secretary that he did not have

money with him, and she was standing close by during his

conversation with Turner. Turner did not call Wilburn after their

September 12 meeting at City Hall, and the two men did not meet for

lunch as they had discussed or have any further contact.

On October 31, 2007, Déjà Vu received an all-alcohol

license from the Licensing Board after Pokaski and Miller, the

attorney, got in touch. This license was not attributable to the

Home Rule petition that passed the Boston City Council, as that

petition was still pending in the state legislature at this time.

The Home Rule petition eventually died in the state legislature.

Turner did not call for any hearings on the subject of denial of

liquor licenses or a new Home Rule petition.

The FBI continued its investigation of Wilkerson for

about a year. On October 27, 2008, the government filed a

complaint against Wilkerson, and the next morning the FBI arrested

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her and executed search warrants, served subpoenas, and conducted

interviews with persons involved in the investigation, including

Turner. FBI agents Cowley and Keelan met with Turner that morning

at his City Hall office.

The agents told Turner that Wilkerson had been arrested

earlier that morning on public corruption charges. They told him

the charges stemmed from her taking money in exchange for

performing acts in regard to a liquor license issue. Turner agreed

to speak with the agents. He told them that Wilkerson had

contacted him regarding a proposed restaurant in the Crosstown

Development that had been denied a liquor license because of what

she believed was racial bias. Turner said he suggested holding a

city council hearing to examine how liquor licenses are

distributed, and he recounted the various officials with whom he

had discussed the issue. He said that he talked with Wilkerson on

the phone two to four times about the issue.

Turner told the agents that he had concluded that racial

bias was not a factor in the decision not to grant the license

applications, and that he eventually concluded there was no need to

hold a hearing after Wilkerson informed him that she was moving

forward with the Home Rule petition to obtain more liquor licenses

for Boston. Turner told the agents that he may have spoken to one

of the principals of the Crosstown Development restaurant on the

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phone, but that they never had an in-person meeting and he could

not remember the man's name.

Asked whether Turner knew Ron Wilburn, Turner said

Wilburn's name sounded familiar, but he did not know him. After

being shown a photograph of Wilburn, Turner said he may have seen

Wilburn in the community, but he did not know him. In response to

a series of direct questions about Wilburn, Turner told the agents

that Wilburn had never offered him anything and never offered to

hold a fund-raiser for him, that he had never had a meeting with

Wilburn and had never met him, and that Wilburn had never offered

him any money or paid him any money.

Turner checked his computer's calendar for a record of

any meeting with Wilburn and told the agents he did not find any.

At this point Turner became agitated and told the agents that the

FBI was a racist organization. In his testimony, Turner himself

characterized this as a "diatribe." After the agents finished

their line of questioning, Turner asked them whether anyone other

than Wilkerson's attorneys had access to or could read the charges

against her. The agents told him that the charges would be made

public and then they left Turner's office.

Later that day, Turner called Agent Cowley and berated

her, accusing the agent of setting him up and violating his civil

rights.

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 II.

On April 7, 2009, a federal grand jury returned a second

superseding indictment against Turner and Wilkerson.2 Turner was

charged with one count each of conspiring to commit extortion under

color of official right and of attempted extortion under color of

official right, both in violation of the Hobbs Act, 18 U.S.C.

§ 1951, and with three counts of making false statements in

violation of 18 U.S.C. § 1001. The conspiracy charge was dropped

on motion of the government before the jury was sworn.

The attempted extortion under color of official right

count was based on Turner's course of conduct, particularly his

accepting $1,000 in cash from Wilburn during the August 3, 2007,

afternoon meeting at his Roxbury office and events before and after

that. The three false statement counts were based on Turner's

statements to the FBI agents at the October 28, 2008, interview in

his City Hall office that (1) he had never accepted money from

Wilburn, (2) Wilburn had never offered to hold a fund-raiser for

him, and (3) Wilburn had never offered him money or any other

assistance.

2
On June 3, 2010, Wilkerson pled guilty to eight counts of
attempted extortion under color of official right, and the
government dismissed the remaining conspiracy and theft of honest
services fraud charges against her. The district court sentenced
Wilkerson to forty-two months' imprisonment, to be followed by
three years' supervised release. Her sentence was affirmed on
appeal. United States v. Wilkerson, 675 F.3d 120 (1st Cir. 2012)
(per curiam).

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 Turner's jury trial began on October 18, 2010, and lasted

through October 28. The defense argued that Turner's scheduling,

and then cancelling, a city council hearing on the subject of

liquor licenses were not in exchange for any money Wilburn may have

given him but rather were legitimately done by Turner as a public

official. Turner testified that holding hearings was part of his

job and that he was concerned about the fact that none of the sixty

liquor licenses recently provided by the state legislature were

given to establishments in the Empowerment Zone in his district.

The defense sought to discredit Wilburn's testimony and

the video evidence of Wilburn's cash payment to Turner on August 3.

The defense argued that Wilburn could have given Turner something

less than $1,000 and pocketed the rest for himself. Turner

testified that the reason the video shows him not looking down when

Wilburn hands him the money is that it was not uncommon for his

constituents to hand him small contributions and it would have been

"rude" and "disrespectful" if he had examined what Wilburn had

given him. Turner called this a "preacher's handshake."

He also testified that he did not remember the August 3

meeting at all and that if he had received $1,000 from anyone, he

would have remembered it. In contrast with these failures of

memory as to his several meetings and conversations with Wilburn,

Turner had a clear memory of a five-minute conversation he had with

Pokaski in June 2007 on the reasons for the rejection of Wilburn's

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application. Turner testified that neither at the time the FBI

agents interviewed him at his City Hall office on October 28, 2008,

nor at trial did he remember ever meeting Wilburn, Wilburn's

offering to hold a fund-raiser for him, or accepting any money from

him.

On October 29, the jury returned a verdict of guilty on

all four counts.3 On January 25, 2011, the district court

sentenced Turner to three years in prison, to be followed by three

years of supervised release. At sentencing, the district court

found that Turner had committed perjury during his testimony.

Turner timely filed his appeal on February 3, 2011.

III.

The Hobbs Act, 18 U.S.C. § 1951, makes it a crime for

anyone to "obstruct[], delay[], or affect[] commerce or the

movement of any article or commodity in commerce, by robbery or

extortion or attempts or conspires so to do," id. § 1951(a), and it

defines extortion as, among other things, "the obtaining of

3
After his conviction but before his sentencing, the Boston
City Council removed Turner from office. Turner sued the city, the
city council, and city council members in federal district court
under 42 U.S.C. § 1983, alleging that his ouster violated his First
and Fourteenth Amendment rights. The district court certified
questions to the Massachusetts Supreme Judicial Court ("SJC"),
Turner v. City of Boston, 760 F. Supp. 2d 208 (D. Mass. 2011),
which held that the city council lacked the authority under state
law to remove Turner from office before he had been sentenced.
Turner v. City of Boston, 462 Mass. 511 (2012). Turner's § 1983
suit in the district court has not yet been resolved.

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property from another, with his consent, . . . under color of

official right," id. § 1951(b)(2).

Turner challenges his conviction for attempted extortion

under color of official right on two main grounds: instructional

error and insufficiency of the evidence. He argues that the

district court's jury instructions on the reciprocity and

interstate commerce elements constituted plain error, so he is

entitled to a new trial, and that there was insufficient evidence

to satisfy those two elements. His appeal also raises evidentiary,

closing argument, and sentencing issues.

A. Hobbs Act: The Reciprocity Element of Extortion Under
Color of Official Right

Hobbs Act extortion under color of official right

prosecutions fall into two categories: campaign contributions4 and

other payments. Turner does not argue that this is a campaign

contribution case.

Outside of the campaign contribution context, the Supreme

Court set the requirement in Evans v. United States, 504 U.S. 255

(1992), that "the Government need only show that a public official

4
The Supreme Court in McCormick v. United States, 500 U.S.
257 (1991), held that a public official's acceptance of payments
that are treated as campaign contributions is a violation of the
Hobbs Act "only if the payments are made in return for an explicit
promise or undertaking by the official to perform or not to perform
an official act." Id. at 273. That is, "a specific quid pro quo
is necessary for conviction under the Hobbs Act when an official
receives a political contribution." United States v. Cruzado-
Laureano, 404 F.3d 470, 482 (1st Cir. 2005).

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has obtained a payment to which he was not entitled, knowing that

the payment was made in return for official acts." Id. at 268.

The Court also held that "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." Id.

The Evans Court did not directly state that proof of at

least an implicit, as opposed to an explicit, quid pro quo or

reciprocity understanding is necessary. However, both Justice

Kennedy in a concurrence and three other justices in a dissent

recognized that the Evans majority's opinion pointed toward such a

requirement. See id. at 272 (Kennedy, J., concurring); id. at 285-

86 (Thomas, J., dissenting). Since Evans, other circuits, using

the language of quid pro quo or variations on that term, have held

that "a quid pro quo [is] required to sustain a conviction in the

non-campaign context, but that the agreement may be implied from

the official's words and actions." United States v. Ganim, 510

F.3d 134, 143 (2d Cir. 2007); see also, e.g., United States v.

Kincaid-Chauncey, 556 F.3d 923, 937 (9th Cir. 2009); United States

v. Antico, 275 F.3d 245, 258 (3d Cir. 2001); United States v.

Giles, 246 F.3d 966, 972-73 (7th Cir. 2001); United States v.

Collins, 78 F.3d 1021, 1035 (6th Cir. 1996); United States v.

Martinez, 14 F.3d 543, 553 (11th Cir. 1994).

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 The Supreme Court has not had the occasion to address

this since Evans. The parties and the district court accepted that

implied reciprocity or quid pro quo is a requirement in non-

campaign contribution cases and we too accept that proposition for

purposes of this case, without deciding the issue. The disputes

here are rather about whether the jury instructions adequately

described the reciprocity concept, under the pertinent standard of

appellate review, and about whether the evidence sufficed.

1. Jury Instructions on the Reciprocity Element

The district court instructed the jury that it must find

beyond a reasonable doubt the following:

First, that on or about August 3, 2007,
Mr. Turner knowingly and willfully obtained
cash from Mr. Wilburn;
Second, that Mr. Turner obtained that
cash under color of official right as a public
official;
Third, that Mr. Turner knew that the
cash to which he was not entitled was obtained
in return for official acts . . . .

After discussing knowledge and willfulness, the court

elaborated:

Let me turn to this idea of color of
official right. The statute, which covers a
broad range of activities, much of which is
unrelated to anything that you have to
consider, calls it Extortion Under Color of
Official [R]ight when a public official has
obtained or attempted to obtain a payment to
which he is not entitled knowing that the
payment was offered to him in return for
taking or withholding or influencing official
acts.

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 The Government does not need to show
that Mr. Turner made some specific threat or
used force or fear to cause a person to tender
the money that the Indictment alleges he
obtained. The Government does not need to
prove that the defendant made any particular
request or demand for money or engaged in some
affirmative inducement to obtain the money.
Passive acceptance of a benefit by a public
official is sufficient if the official knows
that he is being offered or tendered the
payment in exchange for the exercise of his
official power.
The Government is not required to prove
that the defendant made some specific promise
that he was going to perform some particular
act at the time of the payment. What the
Government must prove is that Mr. Turner
received a payment he was not entitled to
receive with knowledge that the payment was
provided to him in exchange for some official
act. It is not necessary for the Government to
show that that act was actually taken or
actually occurred.
Ultimately, the Government does not
have to prove -- and I tell you what the
Government does not have to prove so you
understand what it is that they do have to
prove. The Government does not have to
establish that the defendant had the ultimate
authority to guaranty or deny or influence
actions such as the issuance of a liquor
license all by himself, or to schedule or
cancel City Council hearings on his own or to
pass City Council resolutions on his own. But
the Government must establish that the
defendant in his official capacity had the
power to facilitate government business, and
it was that power, that power to facilitate,
that he was paid to exercise.
The Government does not have to prove
that the defendant had the specific intent to
take the official action at the time the
payment was made, but the Government must
prove that he intended to accept the payment
fully knowing that it was being tendered to
take such official action. That is what the

-22-
 statute means when it talks about Extortion
Under the Color of Official Right.

In his briefs on appeal, Turner's argument was that the

district court's instructions inadequately instructed the jury on

the reciprocity element generally. At oral argument, Turner

reframed his objection to an argument that the instructions could

have been understood by the jury as not requiring a finding that

Turner had impliedly promised to take official actions in return

for the $1,000 Wilburn paid him. Turner argues that the

instructions would have allowed the jury to convict Turner on the

Hobbs Act count even if it found that the $1,000 was a mere

gratuity. Both iterations of the argument were not raised with the

district court. Accordingly, review is for plain error.5 See

United States v. Troy, 618 F.3d 27, 33 (1st Cir. 2010). But since

there was no error at all, the argument fails even if the objection

had been preserved.

The district court's jury instructions track the language

of Evans, which we have repeatedly endorsed. We have repeated the

Evans language that "the Government need only show that a public

official has obtained a payment to which he was not entitled,

5
Turner argues that the issue should be considered properly
preserved under United States v. Sawyer, 85 F.3d 713 (1st Cir.
1996), where we excused the defendant's failure to object to a jury
instruction in part because the defendant did make a number of
other preserved objections to the court's instructions that "were
closely related" to the unpreserved argument he made on appeal.
Id. at 742. The arguments here are not closely related.

-23-
knowing that the payment was made in return for official acts."

United States v. Rivera Rangel, 396 F.3d 476, 484 (1st Cir. 2005)

(quoting Evans, 504 U.S. at 268) (internal quotation marks

omitted). In United States v. Cruz-Arroyo, 461 F.3d 69 (1st Cir.

2006), we said: "To establish guilt for extortion under color of

official right, the prosecution must show only that the defendant,

a public official, has received an emolument that he was not

entitled to receive, with knowledge that the emolument was tendered

in exchange for some official act." Id. at 73.

In keeping with these cases, the district court stated

that the jury must find that "Mr. Turner knew that the cash to

which he was not entitled was obtained in return for official acts"

(emphasis added). Later, the court instructed the jury: "The

statute . . . calls it Extortion Under Color of Official [R]ight

when a public official has obtained or attempted to obtain a

payment to which he is not entitled knowing that the payment was

offered to him in return for taking or withholding or influencing

official acts" (emphasis added). The district court also

instructed: "What the Government must prove is that Mr. Turner

received a payment he was not entitled to receive with knowledge

that the payment was provided to him in exchange for some official

act" (emphasis added). This "in return for" and "in exchange for"

language is directly from Evans and our precedents.

-24-
 In this context, "return" is defined as "something given

to repay or reciprocate." Webster's Third New International

Dictionary 1941 (1993). "In return for" thus means "in repayment

or reciprocity for." Similarly, "in exchange" means "as payment."

Id. at 792. So when the court instructed the jury that it must

find that Wilburn offered Turner the $1,000 "in return for taking

or withholding or influencing official acts," the jury understood

that it had to find that the money was offered "in repayment or

reciprocity for" Turner's "taking or withholding or influencing

official acts." This sufficiently conveys the essence of

reciprocity.

Turner's arguments to the contrary ignore the meaning of

both the phrases "in return for" and "in exchange for," which

conveyed the requirement that the jury find that the $1,000 was

given to Turner as payment, which in turn means "something given to

discharge a debt or obligation or to fulfill a promise." Id. at

1659. This is incompatible with the idea of, as Turner puts it in

his brief, "a gratuity, with no strings attached."

Further, the instructions were clear that

[t]he Government does not have to prove that
the defendant had the specific intent to take
the official action at the time the payment
was made, but the Government must prove that
he intended to accept the payment fully
knowing that it was being tendered to him to
take such official action.

-25-
(Emphasis added.) Similarly, the court instructed the jury that

"the Government must establish that the defendant in his official

capacity had the power to facilitate government business, and it

was that power, that power to facilitate, that he was paid to

exercise" (emphasis added). These instructions did not allow the

jury to convict if they found only that the payment was no more

than a "thank you" offered in gratitude for something already done.

Rather, contrary to Turner's argument, the instructions required

the jury to find that Turner knew the payment was tendered "to

take" an official action or "to exercise" an official power; that

is, to do something for Wilburn after he received the payment.

Read as a whole, the instructions adequately conveyed to

the jury the requirement that they find Turner promised to

undertake ongoing action in exchange for the $1,000.

The government's theory was that when Wilburn's payment

of the $1,000 was accepted on August 3 by Turner (and not

returned), it reflected Turner's understanding that he was being

paid for his ongoing support using his city council position for

Wilburn's as yet unsuccessful liquor license application. The

government did not need to prove that Turner did in fact take steps

thereafter to do what he had been paid to do. Even so there was

evidence from which a jury could conclude that Turner did in fact

take those steps. He agreed to cancel the hearing on denial of

licenses in the area of Roxbury although earlier he had said the

-26-
hearings were not just about Wilburn, but also the larger issue of

possible race discrimination. He did so because Wilburn, having

paid Turner for Turner's ongoing services, asked him to do so. The

government, to be clear, did not argue that Turner had solicited

the money.

The defense closing stressed that the government had not

met its burden. Defense counsel stated in his closing: "The crime

of Attempted Extortion Under Color of Official Right is completed

when a public official receives a payment that he was not entitled

to receive with knowledge that the payment was provided in exchange

for some official act." The defense was that Turner was a busy

public servant with a poor memory who did not make the phone call

to Wilburn on August 3, 2007, inviting Wilburn to Turner's Roxbury

office, and was just "trying to do his job." The theory was that

the reason Wilburn gave money to Turner was so he could pocket some

for himself. No theory was ever presented that the jury must

acquit because the $1,000 was merely a "thank you" gesture made for

official actions Turner had already performed. Nevertheless, that

theory has been introduced on appeal, and fails on its merits.

Turner also argues that even if the instructions contain

accurate statements of the law, certain of the court's statements

regarding what the government did not have to prove overshadowed

everything else. Turner's argument here relies on taking portions

of the court's instructions out of context. The district court

-27-
told the jury that it was instructing them on "what the Government

does not have to prove so you understand what it is that they do

have to prove." After each of the statements cited in Turner's

brief in which the court told the jury what the government did not

have to prove, the court followed up immediately with an accurate

statement of the law as to what the government did have to prove.

Read as a whole, as we must do, these instructions properly

conveyed the requirement that the jury find that Turner knew that

the cash he received was given to him in return (or exchange) for

a promise to take official actions on Wilburn's behalf.

Although he did not seek this instruction at trial,

Turner argues on appeal that the district court erred in failing to

give an instruction that he must have at least understood that he

was "expected to exercise some influence on the payor's behalf as

opportunities arose." United States v. Abbey, 560 F.3d 513, 518

(6th Cir. 2009). Some circuits have used this or similar language

to state that the quid pro quo may be implicit rather than

explicit. See, e.g., United States v. Coyne, 4 F.3d 100, 114 (2d

Cir. 1993) ("[W]e have held since Evans that the government does

not have to prove an explicit promise to perform a particular act

made at the time of payment. Rather, it is sufficient if the

public official understands that he or she is expected as a result

of the payment to exercise particular kinds of influence -- i.e.,

on behalf of the payor -- as specific opportunities arise."

-28-
(citation omitted)). Turner's argument fails for a variety of

reasons, including that this information was conveyed in effect.

In fact, the district court gave an instruction

substantively identical to the one Turner now requests when it told

the jury that "[t]he Government is not required to prove that the

defendant made some specific promise that he was going to perform

some particular act at the time of the payment," but that jury had

to find that "Turner received a payment he was not entitled to

receive with knowledge that the payment was provided to him in

exchange for some official act."

In sum, there was no error in the instructions on the

reciprocity element, much less was there plain error. The

instructions adequately explained the law and did not tend to

confuse or mislead the jury on the controlling issues, so they were

not an abuse of discretion. And they were appropriate to the

factual circumstances of the case, contrary to Turner's argument.

2. Sufficiency of the Evidence on the Reciprocity
Element

Turner argues that even if the instructions were

adequate, there was insufficient evidence as to the reciprocity

element to support a conviction. Turner made and renewed a Rule 29

motion, so the challenge to the sufficiency of the evidence is

reviewed de novo, with the proof viewed in the light most favorable

to the guilty verdict. Cruz-Arroyo, 461 F.3d at 73.

-29-
 At the August 3 meeting, Wilburn repeatedly said that the

$1,000 payment was an expression of his "gratitude" to Turner. On

appeal, Turner uses these statements to argue that the $1,000 was

merely a gratuity and that there was insufficient evidence that

Turner agreed to perform ongoing official acts for Wilburn. There

is strong evidence to the contrary, and the jury's verdict was

amply supported.

We start with Wilburn and Turner's statements at that

August 3 meeting and their actions after the payment. At the

August 3 meeting, as Wilburn handed Turner the $1,000, he said:

"after the hearing," which was still to take place, "I want to show

my gratitude again" (emphasis added). The jury could have

reasonably understood Wilburn to be telling Turner that the $1,000

of "gratitude" being handed over was in fact an inducement for

Turner to promise to use his office to advance Wilburn's efforts to

obtain a liquor license, and that by accepting the cash Turner

implicitly made that promise. The jury could reasonably have

concluded that Wilburn was telling Turner (and that Turner

understood) that another payment would be forthcoming after Turner

fulfilled his implicit promise to hold the liquor license hearing.

Wilburn also told Turner: "I just want you to know that,

you know, you take care of me, I take care of you." He also said:

"I'll talk to you, uh, before the hearing. . . . And I'll talk to

you after the hearing. . . . And we'll set up and I'll take care of

-30-
you again." Turner's response was: "All right." Turner accepted

the implicit deal for his future official acts; he did not reject

the deal, nor did he reject or return the money. See Evans, 504

U.S. at 274 (Kennedy, J., concurring) ("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.").

Turner's actions after this August 3, 2007, meeting

provide further support for the jury's verdict. On August 8, 2007,

Turner made a phone call to Wilburn to assure him that even though

the hearing date set had to be cancelled due to a scheduling

conflict, the hearing would still take place later. And on August

13, 2007, Wilburn called Turner to get the hearing cancelled

because it might interfere with his efforts to obtain a liquor

license by other means. Turner ultimately agreed to cancel the

hearing at Wilburn's request, on the condition that Wilburn would

receive the all-alcohol license he was seeking. This was so

despite the fact that Turner's original purported purpose in

holding the liquor license hearings was to bring to light the fact

that liquor licenses were not being properly apportioned by the

Board to the Empowerment Zone, a problem that would not have been

remedied by a deal providing just Wilburn with a license. But as

-31-
Wilburn testified at trial: "[W]e didn't need a hearing. All we

needed was a liquor license." The jury could have easily inferred

that Turner's continuing to make sure that Wilburn's ultimate goal

of getting an all-alcohol license was realized was evidence that

Turner had implicitly agreed to help him reach that goal when he

took the $1,000 on August 3, 2007.

The jury also had evidence of Turner's concealment of the

crime and consciousness of guilt, which supported its verdict on

the Hobbs Act count. See United States v. Romero-Carrion, 54 F.3d

15, 17 (1st Cir. 1995) (evidence of defendant's consciousness of

guilt supported guilty verdict). The jury heard the testimony of

the two FBI agents who interviewed Turner in his City Hall office

on October 28, 2008. During that interview Turner denied that

Wilburn had ever offered to hold a fund-raiser for him or offered

him any money or paid him any money. Turner even denied ever

having met Wilburn. From having seen and heard the recordings of

Wilburn and Turner's meetings, the jury knew these denials were

false.

Turner told the agents that he eventually concluded there

was no need to hold a hearing on the denial of liquor licenses

because Wilkerson informed him that she was moving forward with the

Home Rule petition to obtain more liquor licenses for Boston. But

he testified at trial that he did not learn about the Home Rule

petition until after he agreed to cancel the hearing at Wilburn's

-32-
request. Similarly, he told the agents that he did not move

forward with the hearing because he had determined that racial bias

did not play a part in the denial of Wilburn's liquor license

application, but at trial he testified that he had decided to go

ahead with the hearing even though he was satisfied that the Board

had rejected Wilburn's application for legitimate reasons.

This evidence not only went to Turner's guilt on the

false statement counts. It was also evidence that Turner knew he

was guilty of the crime of accepting money in exchange for

promising to perform official acts on Wilburn's behalf and was

trying to cover up that guilt by lying to the FBI agents.

Turner's own testimony at trial provided further evidence

of his guilty conscience. He testified that he could not remember

meeting with Wilburn and accepting the $1,000 Wilburn passed to

him, even after hearing the other witnesses' testimony and watching

the video of the transaction. This is in contrast to his clear

recollection of a five-minute phone conversation he had with

Pokaski regarding the reasons why the Board denied Wilburn's liquor

license application.

Turner was asked directly on cross-examination whether

the $1,000 he had received from Wilburn "was an exchange of money

for service, right? That's what happened here?" His answer was:

"I have no way of saying, so I can't answer the question, because

-33-
I don't remember what happened, and the picture doesn't answer that

question for me."

When asked about the roll of fifteen bills constituting

the $1,000 he was handed, he said he did not look down because it

was like a "preacher's handshake," and it would be rude to look

down at the money. And when asked how he knew what was handed to

him was money if he did not look down, Turner then said he did not

know it was money and it would be rude to look down at any gift.

Turner's testimony was so incredible that at sentencing

the district court found "beyond a reasonable doubt" that Turner

had perjured himself.

B. Hobbs Act: The Interstate Commerce Element of Extortion
Under Color of Official Right

There was no error in the district court's instruction on

the jurisdictional element. To meet the jurisdictional requirement

of the Hobbs Act, "the government need show only that the conduct

created a 'realistic probability' of a minimal effect on interstate

commerce." United States v. Brennick, 405 F.3d 96, 100 (1st Cir.

2005) (quoting United States v. Capozzi, 347 F.3d 327, 335 (1st

Cir. 2003)). This minimal effect has been described by our

precedent as "a de minimis effect," Capozzi, 347 F.3d at 335

(quoting United States v. Butt, 955 F.2d 77, 80 n.2 (1st Cir.

1992)), and we have upheld an instruction that the jury must find

the activity in question to have had a "minimal, slight or subtle

effect" on interstate commerce, Butt, 955 F.2d at 80 n.2.

-34-
 1. Jury Instructions on the Jurisdictional Element

Turner's specific claim of error is that the district

court's instructions suggested that it sufficed for the jury to

find a connection between liquor licenses and interstate commerce

and did not require it to further find that Turner was "interfering

with" liquor licenses.

Turner admittedly did not object at trial to the court's

jury instructions on the interstate commerce element, so the

instructions are reviewed for plain error only. Troy, 618 F.3d at

33. Here, there was no error at all.

The district court correctly instructed the jury that the

interstate commerce element could be satisfied by proof that there

was "the prospect, the realistic prospect, that there [was] going

to be some interference with or alteration in the movement of

product in interstate commerce" and that "[t]he actual potential

effect on interstate commerce can be minimal" or "minor or slight."

The district court also correctly instructed the jury on

the required "nexus" between the defendant's actions and the effect

on interstate commerce. The district court told the jury: "[T]he

government must prove that the natural consequence of the

defendant's conduct, as he understood the circumstances to be,

potentially could have caused an impact on interstate commerce,

however minor or slight" (emphasis added). With this language the

court clearly and correctly instructed the jury that they had to

-35-
find that any effect on interstate commerce was a "consequence of

the defendant's conduct."

Turner takes issue with the court's next statement that

you will consider whether or not the use of
liquor for a liquor license and for a
nightclub or a supper club is something that
could interfere with the interests of the
proposed business . . . . And if you find that
it is, . . . then you may find that this
interstate-nexus element has been met.

Turner argues that this instruction could be read as stating that

the interstate commerce element could be met merely by finding a

connection between liquor licenses and interstate commerce. Not

so. The court's immediately preceding statement, that the jury

must find a connection between the defendant's conduct and

interstate commerce, made it clear that the jury was told that it

had to find both that Turner's conduct affected liquor licenses and

that this effect on liquor licenses affected interstate commerce.

There was no error, let alone plain error.

2. Sufficiency of the Evidence on the Jurisdictional
Element

Ample evidence supports the jury's conclusion that the

interstate commerce element was met, in that Déjà Vu's receipt of

a liquor license would affect interstate commerce. The jury heard

testimony that a liquor license was necessary for the success of

Wilburn's supper club and that the liquor sold there would travel

in interstate commerce.

-36-
 Actions affecting the availability to a business of a

liquor license affect interstate commerce. In United States v.

McKenna, 889 F.2d 1168 (1st Cir. 1989), the defendants were

officials in the Somerville city government who drafted and passed

a Home Rule petition setting aside liquor licenses for an area of

the city in which a hotel and bar would be built, in return for

which they received cash from the project's developers. Id. at

1170. The McKenna defendants were also evidently instrumental in

getting the Home Rule petition approved by the Massachusetts

legislature. Id. We stated that

[i]t is all but undeniable that a business
with a liquor license would do business in
interstate commerce. It follows that where
the home rule petition facilitated, albeit
remotely, the availability of a liquor
license, a jury could find that the petition
had a realistic probability of affecting
interstate commerce.

Id. at 1172.

There was also sufficient evidence that Turner's "conduct

created a 'realistic probability' of a minimal effect on interstate

commerce." Brennick, 405 F.3d at 100 (quoting Capozzi, 347 F.3d at

335). There was evidence that after the payment Turner continued

to arrange for a city council hearing on the subject of liquor

licenses going to the Empowerment Zone. Turner's hearing order

specifically mentioned the Crosstown Development in which Wilburn

planned to locate his supper club. Given this evidence and the

discussions between Turner and Wilburn in which Turner clearly

-37-
expressed an intention to help Wilburn obtain a liquor license for

the supper club, the jury could reasonably find beyond a reasonable

doubt that Turner's conduct created a realistic probability of a

minimal effect on interstate commerce.

C. Evidentiary Issues

Turner also argues on appeal that he is entitled to a new

trial based on errors in the admission of evidence. He is not.

We review the district court's decision whether to admit

or exclude evidence for abuse of discretion, United States v.

Phoeun Lang, 672 F.3d 17, 23 (1st Cir. 2012), and an erroneous

admission on a preserved ground is reviewed under the harmless

error doctrine, United States v. Roberson, 459 F.3d 39, 49 (1st

Cir. 2006).

1. Wilburn's Conversation with Agent Robbins

Without objection, Wilburn testified that after Turner

called him on the morning of August 3, 2007 -- the day Wilburn made

the $1,000 payment to Turner -- he told an FBI agent about the

call. He told the FBI agent that he thought the meeting with

Turner might be in connection with a payment Wilburn had made to

Wilkerson the day before and that Turner might, as a result, take

a bribe at the meeting. The FBI agent agreed that Turner might

take a bribe and outfitted Wilburn with listening devices and gave

him $1,000.

-38-
 The government relied on this testimony in its closing

for two propositions. First, that it was Wilburn's idea to offer

Turner the money, not the FBI's. And second, that the August 3,

2007, phone call, which was not recorded, actually occurred.

Turner argues that these statements were inadmissible

hearsay and were impermissibly used to persuade the jury that

Wilburn's suspicion that Turner would accept a bribe was true and

that Turner implicitly solicited the payment before the August 3,

2007, meeting took place.

Wilburn's testimony about his conversation with the FBI

agent regarding the phone call was properly admitted; there was no

error, and so no plain error. Wilburn's statement that he thought

Turner might accept a bribe was admissible to explain why the agent

gave Wilburn the $1,000 to pay Turner that day. See United States

v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001) (a statement "offered to

show the effect of the words spoken on the listener (e.g., to

supply a motive for the listener's action)" is not hearsay (quoting

United States v. Murphy, 193 F.3d 1, 5 n.2 (1st Cir. 1999))).

This was relevant: that Turner called Wilburn to invite

him to his office and that Wilburn in turn suggested to the FBI

that Turner might accept a bribe were relevant to rebutting

Turner's claim that the FBI had set him up. Cf. United States v.

Benitez-Avila, 570 F.3d 364, 369 & n.1 (1st Cir. 2009)

(inadmissible evidence of investigators' good faith basis for

-39-
investigating the defendant might have become relevant and

therefore admissible had the defendant attempted to impeach the

government's evidence by suggesting that the agents were motivated

by bias or mistake).

Turner's argument that the government used this testimony

to argue that Turner somehow implicitly solicited the $1,000 before

the August 3 meeting is not true. The government in its closing

explicitly stated that it was not relying on a theory that Turner

had induced or suggested the bribe.

2. Wilburn's Conversation with Turner's Secretary at
City Hall

Wilburn testified, over objection, that while Turner's

secretary was taking Wilburn to meet Turner, the secretary asked

Wilburn whether he had any money and Wilburn said no. After

Wilburn testified that he met with Turner but did not give him the

$600, the government asked why he did not do so. Again over

objection Wilburn testified: "Because I thought that there was some

conversation about him [i.e., Turner] taking money, and he had

talked to her and said if I came in, do not take any money. I

mean, that's how I felt, and that's what I saw." At a later

sidebar Turner re-raised his objection to Wilburn's testimony and

the court ruled that the testimony was "not hearsay, and there was

adequate foundation, and it is for notice in the general rule of

things." The challenge is reviewed for abuse of discretion.

Benitez-Avila, 570 F.3d at 367.

-40-
 The secretary's question to Wilburn whether he had any

money was admissible to show why Wilburn did not offer Turner the

$600 that day. See Bailey, 270 F.3d at 87 (testimony offered to

supply motive and not for its truth is not hearsay). There was no

error.

Wilburn's testimony that he "thought that there was some

conversation about [Turner] taking money, and [Turner] had talked

to [Turner's secretary] and said if I came in, do not take any

money" is another matter. This was surmise, even if intelligent

surmise. There was no evidence that such a conversation between

Turner and Turner's secretary took place. Wilburn's testimony

lacked foundation. Fed. R. Evid. 602 (2010) ("A witness may not

testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the

matter.").6

The government cites to no case law but argues that the

statement was admissible because it somehow rebutted a defense that

Wilburn was motivated by his own financial needs. We do not see

the connection, nor would that overcome the fact that this was

sheer speculation.

6
The government argues that Wilburn's testimony had an
adequate foundation because Wilburn knew that he had paid Turner
$1,000 on August 3, so he could testify about why the situation was
different on August 12, when he failed to pay the $600. This
argument does not go to foundation at all.

-41-
 In all events, even if the admission of this portion of

Wilburn's testimony was error, it was harmless. "The admission of

improper testimony is harmless if it is highly probable that the

error did not influence the verdict." United States v. Casas, 356

F.3d 104, 121 (1st Cir. 2004).

[A] harmlessness determination demands a
panoramic, case-specific inquiry considering,
among other things, the centrality of the
tainted material, its uniqueness, its
prejudicial impact, the uses to which it was
put during the trial, the relative strengths
of the parties' cases, and any telltales that
furnish clues to the likelihood that the error
affected the factfinder's resolution of a
material issue.

Id. (quoting United States v. Sepulveda, 15 F.3d 1161, 1182 (1st

Cir. 1993)) (internal quotation marks omitted).

Wilburn's speculative testimony did nothing to affect the

properly admitted testimony regarding the central issues in the

case: the $1,000 payment and Turner's ongoing efforts in return to

help Wilburn get his liquor license. It was clear to the jury that

Wilburn was speculating and did not know one way or another. And,

as the defense brought out at trial, there was a perfectly

reasonable basis for the secretary's statement: political

contributions of any amount were not allowed in City Hall.

More than that, the totality of the evidence, especially

the evidence of Turner's lies and his own testimony, strongly

supported the verdict. Because it is highly probable that

-42-
Wilburn's challenged testimony did not influence the verdict, the

error was harmless.

3. Agent Cowley's Testimony About Turner's State of
Mind

On the afternoon of October 28, 2008, after FBI Agent

Cowley and another agent interviewed Turner in his City Hall

office, Turner called Cowley and expressed to her that he was upset

about the interview that morning. On cross-examination, defense

counsel asked Cowley, over objection, about Turner's tone during

the phone call. The following exchange took place:

Defense: And by the nature of his tone, wasn't
it clear that he didn't know anything
about what you were talking about?
Cowley: When I interviewed him?
Defense: When he made the phone call, when he
said, You set me up, what's this
stuff about an affidavit and City
Hall and all this?
Cowley: Oh, no. I think he knew he got
caught, and that's why he was upset,
not because I set him up.
Defense: Excuse me.
COURT: Just a moment. Just a moment. The
question was asked; the answer can be
completed.
Defense: The answer just --
COURT: The answer is responsive to the
question that was asked.
Defense: It only asks for a yes or no.
COURT: I have now ruled on it. Have you
completed your answer?
Cowley: Well, I just want to clarify the
question. I believe the question was
it wasn't from the tone that he
didn't know anything about Ron
Wilburn. No, I don't believe that
was the case at all. I believe the
tone -- he was upset that after he
had read the Complaint Affidavit,

-43-
 that he saw that there was videotape
of him, and that's what he was upset
about. That's what I believe he was
upset about, not that he didn't know
anything about Ron Wilburn.
Defense: But that's what you believe.
Cowley: You asked me what I thought. Yes,
that's what I believe.
Defense: No. I asked you about the tone of
his voice.

Turner did not move to strike the testimony and so did

not preserve any objection to an answer he elicited. However,

because the government on appeal has treated Turner as having made

an appropriate objection, we deal with the issue. The government

argues that any error was harmless.

The admission of the statement was harmless because it

was elicited by the defense and, in our view, harmless anyway.

United States v. Rivera-Rivera, 477 F.3d 17, 20 (1st Cir. 2007)

(defendant "cannot persuasively complain about the admission of

this evidence, given that it was the defense -- not the government

-- which elicited it in the course of its cross-examination"); see

also United States v. Lizardo, 445 F.3d 73, 84 (1st Cir. 2006)

(where the defendant elicited challenged testimony on

cross-examination, he could not "contest his own invited error" on

appeal).

D. The Government's Closing Argument

During his closing argument, the prosecutor made this

statement about the meeting between Turner and the FBI agents on

October 28, 2008: "And then the agents decide it's time to ask the

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tough questions. Do you know Ron Wilburn? The magic blank goes

over Chuck Turner's face, and he knows at that moment that the gig

is up, that he's caught." Turner argues that this is factually

inaccurate because Turner only became upset later in the interview,

when he began searching his calendar for any mention of Wilburn.

There was no error here: Turner's premise is wrong. The

prosecutor's argument that Turner knew he was caught was not based

on Turner's change in mood later in the interview, but rather on

Turner's purported memory loss as to his repeated interactions with

Wilburn. The prosecutor was asking the jury to infer that Turner

had a guilty conscience from the fact that he lied to the

investigators. Turner is further incorrect in arguing that the

prosecutor's statement was in any way related to Agent Cowley's

testimony, discussed above, that Turner was upset later that day

because he knew he had been caught: the prosecutor's closing never

referenced that testimony.

E. Sentencing

Turner's last argument is that the government improperly

based its opposition to a downward variance on Turner's exercise of

his First Amendment rights and that by doing so it "poisoned" the

sentencing proceedings.

He bases this argument on the government's sentencing

memorandum, which encouraged the court to consider that Turner's

public conduct after being accused of corruption "affirmatively

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promoted disrespect for the law," "demeaned the seriousness of his

offense," and "eroded the public's trust in law enforcement and the

criminal justice system." The government quoted Turner's

statements to the press and a speech to his constituents. The

memorandum further characterized Turner's public comments as "an

incendiary campaign of misinformation, obfuscation and blame" that

had been "divisive in its intent and in its effect."

Additionally, at the sentencing hearing, the prosecutor

said that Turner had been "railing for many months about how the

Government's case was, quote, infected with racism." The

prosecutor also said that Turner "exacerbated" his crime by, for

example, "going out on the street and accusing the Government,

falsely accusing the Government, of all sorts of improper motives."

The government recommended a sentence within the

guidelines range which was enhanced to thirty-three to forty-one

months when the court found that Turner perjured had himself. The

government made no recommendation as to where within this range the

court should sentence Turner. The court sentenced Turner to

thirty-six months' imprisonment, near the middle of the guidelines

range.

"While we may presume vindictiveness when the Government

changes its legal position after the exercise of a constitutional

right by the defendant, the harshness of this presumption requires

that we do so only when 'a reasonable likelihood of vindictiveness

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exists.'" United States v. Rolfsema, 468 F.3d 75, 79 (1st Cir.

2006) (quoting United States v. Goodwin, 457 U.S. 368, 374 (1982)).

A finding of vindictiveness would require reversal for

resentencing. See United States v. Crocker, 788 F.2d 802, 809 (1st

Cir. 1986).

Turner's challenge to his sentence fails because the

basis for his vindictiveness argument is incorrect.

The government brought up Turner's public statements only

for the purpose of rebutting an argument the government expected

Turner to make that he was entitled to a lower sentence because of

the acceptance of responsibility sentencing guideline or a downward

departure request on the same grounds. See Government's Sentencing

Memorandum at 2-4, United States v. Turner, No. 08-cr-10345 (D.

Mass. Jan. 20, 2011), ECF No. 357. The government's sentencing

memorandum argued that Turner's out-of-court statements that his

prosecution was racially motivated showed that he had not accepted

responsibility, and the memorandum also referred to his perjury.

In addition, the district court explicitly stated that it

had declined to consider Turner's public statements in coming to

its sentencing decision, stating that it was not "likely to attach

any significance one way or the other with respect to the question

of Mr. Turner's assertions about the source of the prosecution

. . . it is not weighing in the balance." The court based its

sentence on Turner's offense conduct and his perjurious testimony

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and sentenced him within the guidelines. In discussing the basis

for its sentence, the court gave a long and thoughtful analysis of

Turner's conduct and the sentencing factors and concluded that a

guidelines sentence of three years was appropriate.

Turner has not shown prosecutorial vindictiveness in the

government's sentencing recommendation. And the court made an

independent sentencing decision based on the guidelines. Given the

facts as found by the jury, the sentence was reasonable.

IV.

We affirm Turner's convictions and his sentence.

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