United States v. Ellis

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-6690

WILLIAM T. ELLIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-89-242, CA-93-709)

Argued: February 1, 1996

Decided: July 16, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jacqueline Gerson, SIDLEY & AUSTIN, Washington,
D.C., for Appellant. Michael Lee Keller, Assistant United States
Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Car-
ter G. Phillips, SIDLEY & AUSTIN, Washington, D.C.; R. Clarke
VanDervort, ROBINSON & MCELWEE, Charleston, West Virginia,
for Appellant. Rebecca A. Betts, United States Attorney, Charleston,
West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

William T. Ellis appeals from the district court's order denying his
motion to vacate, set aside, or correct sentence by a person in federal
custody pursuant to 28 U.S.C. § 2255. Ellis raises two main issues on
appeal. He argues that the district court erred when it refused to
vacate and set aside his convictions for violating the Hobbs Act and
the federal racketeering statute because his jury was not instructed
that a quid pro quo is a necessary element of the federal extortion
crimes charged under the Hobbs Act and under RICO as predicate
acts. At the time of Ellis's trial in 1990, a quid pro quo instruction
was not required under the Hobbs Act. It now is. See McCormick v.
United States, 500 U.S. 257 (1991); Evans v. United States, 504 U.S.
255 (1992). The district court held, however, that Ellis had failed to
show "cause" and "prejudice" for his failure to raise this issue on
direct appeal. See Frady v. United States, 456 U.S. 152 (1982).

Ellis also argues that the district court erred when it held that suffi-
cient evidence was presented at trial showing that he obstructed jus-
tice in violation of 18 U.S.C. § 1503. Ellis contends that his
obstruction of justice conviction cannot stand after the Supreme
Court's recent decision in United States v. Aguilar, 115 S. Ct. 2357
(1995). In Aguilar the Supreme Court held that a nexus must be
shown between the alleged act of obstruction and the investigation
alleged to have been obstructed. Id. at 2362. According to Ellis, no
temporal nexus exists here and, therefore, insufficient evidence of
guilt was presented at trial.

As we explain, Ellis suffered no prejudice from the omission of the
quid pro quo instruction on the Hobbs Act charge because the trial
court's other instructions to the jury adequately covered the point. We
do not, therefore, address the issue of cause. On Ellis's conviction for
obstruction of justice, we hold that even in light of the Supreme

2
Court's decision in Aguilar, sufficient evidence of guilt was presented
at Ellis's trial. Accordingly, we affirm the district court's denial of
Ellis's motion.

I.

A.

The facts presented at Ellis's trial established the following. In
May 1984 Ellis acquired a twenty percent limited partnership interest
in the Tri-State Greyhound Park in Cross Lanes, West Virginia.
Under West Virginia state law, dog tracks are allowed to keep a spe-
cific percentage of the revenue generated by the wagers (i.e., "take-
out"). In 1986 the owners of Tri-State supported a proposed bill that
would have increased their "take-out" percentage. Although the bill
passed both houses of the state legislature, it was vetoed by the Gov-
ernor.

In 1987 a similar bill was introduced, and renewed efforts were
made to obtain support for it. To this end, Tri-State promised to pay
Ellis $500,000 if the bill became law. Ellis proceeded in a variety of
allegedly fraudulent ways to assure passage of the bill. With the help
of Janet Ellis, his former wife, he made contact with and worked pri-
marily through Samuel D'Annunzio, a West Virginia lobbyist.

Among other things, Ellis provided sums of cash to D'Annunzio to
be used to influence various state legislators, including State Senator
Larry Tucker and State Senate President Dan Tonkovich. D'Annunzio
promised Tucker $10,000 if he could "fix the House" with regard to
the bill, and Tucker accepted the money and contacted the Speaker of
the House of Delegates on behalf of the legislation. D'Annunzio
reached a similar understanding with Tonkovich. However,
Tonkovich did not actually receive any cash payments because Ellis
told D'Annunzio to hold the money until the legislative session was
over.

The West Virginia legislature eventually passed, and the Governor
signed, the 1987 bill. After reports of questionable financial arrange-
ments surfaced between D'Annunzio and the bill's original sponsor,

3
State Senator Si Boettner, a federal investigation was initiated into
charges of corruption surrounding the passage of the bill. Thereafter,
D'Annunzio entered into a plea agreement with the federal govern-
ment in which he agreed to cooperate with the investigation in an
undercover capacity.

D'Annunzio met with Tucker on August 5, 1988, and Tucker
returned the $10,000 previously given him. On September 28, 1988,
D'Annunzio arranged to meet Ellis for the ostensible purpose of
returning the $10,000 he had retrieved from Tucker. The meeting was
recorded by federal agents who immediately executed a search war-
rant and seized the $10,000 from Ellis. Two days later, Ellis was
informed that he was a target of a grand jury investigation.

After being informed that he was under investigation, Ellis met
with his ex-wife, Janet Ellis, and provided her with a written collec-
tion of false statements that she was to provide federal authorities if
contacted. Ellis wanted Janet Ellis to say that D'Annunzio volun-
teered to work on the "take-out" bill, that D'Annunzio was a manipu-
lative person who "played games," and that Ellis had paid
D'Annunzio $25,000 as a lobbying fee. Ellis also sought to have Janet
Ellis tell federal investigators that Ellis owed D'Annunzio money on
a gambling debt.

On December 4, 1988, D'Annunzio committed suicide. Ellis then
told Janet Ellis that he was "off the hook" because everything that had
transpired between him and D'Annunzio had been "one on one."
However, on the basis of information provided by D'Annunzio before
he died and by Janet Ellis, a federal grand jury returned an indictment
against Ellis.

B.

Ellis was charged with eight counts of Hobbs Act, mail fraud, rack-
eteering, and obstruction of justice violations. On May 17, 1990, a
jury convicted Ellis on six counts consisting of two substantive counts
of causing extortion, in violation of the Hobbs Act, 18 U.S.C. §§ 1951
& 2, and one count each of conspiracy to cause extortion, 18 U.S.C.
§ 1951, racketeering, in violation of the Racketeering Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. #8E8E # 1962(c) & 1, con-

4
spiracy to violate RICO, 18 U.S.C. § 1962(d), and obstruction of jus-
tice, 18 U.S.C. §§ 1503 & 2.

Five predicate acts formed the basis of the RICO convictions.
These five acts included the two substantive Hobbs Act violations,
one act of bribery and one act of attempted bribery under West Vir-
ginia state law, W. Va. Code § 61-5A-3, and the obstruction of justice
violation. The state bribery acts were based on the same transactions
as the two substantive extortion charges under the Hobbs Act.

The trial court sentenced Ellis to 107 months imprisonment and
fined him $50,000. On appeal we affirmed Ellis's conviction and sen-
tence. United States v. Ellis, 951 F.2d 580 (4th Cir. 1991). The
Supreme Court denied his petition for writ of certiorari. 505 U.S.
1220 (1992).

On August 9, 1993, Ellis filed this motion for collateral relief under
28 U.S.C. § 2255. Ellis's motion was referred to a United States Mag-
istrate Judge for a report and recommendation. On January 11, 1994,
the magistrate judge recommended that Ellis's motion be denied. Ellis
then filed objections with the district court. On June 10, 1994, the dis-
trict court entered a memorandum order denying the motion for col-
lateral relief. This appeal followed.

II.

A.

Ellis first complains that the jury instructions pertinent to his
Hobbs Act convictions were improper in light of the Supreme Court's
subsequent decisions in McCormick v. United States, 500 U.S. 257
(1991), and Evans v. United States, 504 U.S. 255 (1992). In particu-
lar, Ellis argues that the decisions in McCormick and Evans establish
that a jury must be instructed that a defendant does not violate the
Hobbs Act unless some property (e.g., money) was obtained as a quid
pro quo for some act made under the color of official right. Because
the trial court failed to so instruct the jury at Ellis's trial, Ellis con-
tends that his Hobbs Act convictions must be vacated.

5
Ellis's counsel did not raise the quid pro quo argument either at
trial or on direct appeal. Accordingly, to obtain collateral relief Ellis
must demonstrate both "(1) `cause' excusing his double procedural
default, and (2) `actual prejudice' resulting from the errors of which
he complains." United States v. Frady, 456 U.S. 152, 168 (1982);
United States v. Maybeck, 23 F.3d 888, 891 (1994). More specifically,
to establish "cause" Ellis must "show that some objective factor exter-
nal to the defense impeded counsel's efforts . . . .[For example,] a
showing that the factual or legal basis for a claim was not reasonably
available to counsel . . . would constitute cause under this standard."
Murray v. Carrier, 477 U.S. 478, 488 (1986); see Reed v. Ross, 468
U.S. 1, 11 (1984) (to establish cause for a claim that was defaulted
on appeal, a habeas petitioner must show that his claim is "so novel
that its legal basis is not reasonably available to counsel"). See also
Engle v. Isaac, 456 U.S. 107, 130 (1982) ("the futility of presenting
an objection to the state courts cannot alone constitute cause for a fail-
ure to object at trial"); id. at 134 ("Where the basis of a constitutional
claim is available, and other defense counsel have perceived and liti-
gated that claim, the demands of comity and finality counsel against
labeling alleged unawareness of the objection as cause for a proce-
dural default.") (footnote omitted).

As for prejudice, when, as here, a convicted defendant seeks to
obtain collateral relief based on alleged errors in jury instructions, a
showing of "plain error" under Rule 52(b), Fed. R. Crim. P., is not
sufficient. Frady, 456 U.S. at 168 ("a prisoner must clear a signifi-
cantly higher hurdle than would exist on direct appeal"). Instead, the
burden falls on Ellis to show, "not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions." Id. at 170 (emphasis in original). Thus,
the issue turns on "whether the ailing instruction by itself so infected
the entire trial that the resulting conviction violates due process, not
merely whether the instruction is undesirable, erroneous, or even uni-
versally condemned." Id. at 169 (citations and internal quotes omit-
ted).

As discussed below, Ellis has failed to show prejudice. We there-
fore need not determine whether cause exists.

6
B.

The Hobbs Act, 18 U.S.C. § 1951, provides in pertinent part that:

(a) Whoever in any way or degree obstructs, delays, or
affects commerce . . . by . . . extortion . . . in violation of
this section shall be fined not more than $10,000 or impris-
oned not more than twenty years, or both.

(b) As used in this section--

***

(2) The term "extortion" means the obtaining of
property from another, with his consent, induced
by wrongful use of actual or threatened force, vio-
lence, or fear, or under the color of official right.

(Emphasis supplied.)

At Ellis's trial, the court instructed the jury as to the following stat-
utory elements that must be proved in order to establish a Hobbs Act
violation:

Obtaining payment or property under color of official
right means the obtaining of money or property by a public
official when the money obtained was not lawfully due and
owing to him or to his office. It does not matter whether the
public official induced or caused the payment by promising
to perform his duties or not to perform or to refrain from
performing certain acts.

***

If the public official knows the motivation of the individ-
ual making the payment is the public official's office, and
money is obtained or attempted to be obtained by the public
official which was not lawfully due and owing to him or to
the office he represented, that is sufficient to satisfy the gov-

7
 ernment's burden of showing misuse of office and extortion
or attempt of extortion under color of official right. . . .

. . . It is sufficient if the evidence shows that the individ-
ual making or promising payment were (sic) motivated to
deliver money to someone as a result of the public official's
position.

***

It is not necessary that the government prove that any
public official, including Senators Tonkovich, Tucker, or
Governor Moore, committed or promised to commit a quid
pro quo, that is, an official action in return for the payment
of money. Such a quid pro quo may, of course, be forthcom-
ing in this sort of case, or it may not. In any event, it is not
an essential element of the crime that the United States
needs to prove.

(Emphasis supplied.)

In McCormick, however, the Supreme Court held that a quid pro
quo jury instruction is required under the Hobbs Act in cases where
a person is alleged to have acted under the color of official right and
received a "campaign contribution" in return for the performance of,
or abstaining from an official act. 500 U.S. at 273-74. Thereafter, in
Evans, the Supreme Court extended the holding of McCormick to
non-campaign contribution cases. Evans, 504 U.S. at 268 (holding
that "the Government need only show that a public official has
obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts").

Subsequently, this circuit applied the rulings in McCormick and
Evans to reverse the conviction of a state legislator accused of accept-
ing campaign contributions in violation of the Hobbs Act. United
States v. Taylor, 966 F.2d 830 (4th Cir. 1992), aff'd on reh'g, 993
F.2d 382 (4th Cir. 1993), cert. denied, 114 S. Ct. 249 (1993). In
Taylor, the jury was told that:

8
 There need be no specific quid pro quo to establish extortion
under color of official right. That is, the government need
not prove that the defendant promised to do something in
particular in return for the payment of money. Of course, if
you find that a quid pro quo did exist, that would be evi-
dence of misuse of office. So long as a defendant knows that
the money sought would be paid because of the public office
involved, there need be no promise with respect to official
action in return for payment. In other words, the essence of
the offense is the corrupt effort to obtain payment of the
powers public office (sic) and not solely as a result of the
powers of a private individual.

993 F.2d at 385 (emphasis in original).

We held that such an instruction was defective and reversed the
defendant's conviction. We said that:

It is necessary for the prosecution to prove under the Evans
standard "that a public official has obtained a payment to
which he is not entitled, knowing that the payment was
made in return for official acts." Or, if the jury finds the pay-
ment to be a campaign contribution, then, under
McCormick, it must find that "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. (quoting Evans, 504 U.S. at 268; McCormick, 500 U.S. at 273).

Here, although Ellis did not make payments under the guise of
"campaign contributions," his case falls within the holding of Evans.
Indeed, when taken together, the decisions in McCormick, Evans, and
Taylor show that Ellis's jury was improperly instructed on the Hobbs
Act charges.

Again, however, merely because Ellis has established error does
not in turn establish prejudice for purposes of this section 2255
motion. In addition, while it is true that a jury must find the defendant
guilty of all the elements of the crime with which he is charged before

9
a conviction can be properly obtained, e.g., United States v. Gaudin,
115 S. Ct. 2310, 2314 (1995), it does not necessarily follow that
Ellis's Hobbs Act convictions must be set aside under the particular
circumstances of this case.

We say this because Ellis's jury was not only instructed on the
Hobbs Act offenses, but it was also instructed on the elements of brib-
ery under West Virginia state law. As we have noted, the two state
bribery acts were based on the same transactions as the two substan-
tive extortion charges under the Hobbs Act. And, of course, before
Ellis's jury could find that he committed the two predicate acts of
state bribery, it would have to find that Ellis committed all the ele-
ments of the crime of bribery. Thus, if the trial court's instructions on
the predicate acts of state bribery covered the quid pro quo element,
then Ellis's jury must have found that element satisfied, and Ellis suf-
fers no prejudice within the meaning of Frady .

For instance, in United States v. Hairston, 46 F.3d 361 (4th Cir.
1995), we recently upheld Hobbs Act convictions on direct appeal
even though the jury was not given an express quid pro quo instruc-
tion on the Hobbs Act charges. Among other things, we concluded
that the failure to provide an express quid pro quo instruction was
harmless error under Rule 52(a), Fed. R. Crim. P., when the district
court's explanation of bribery in other counts charged in the indict-
ment included the concept of quid pro quo. Id. at 373-74. It, therefore,
follows that so long as Ellis's jury was instructed on the concept of
a quid pro quo as it relates to the predicate acts of state bribery, he
has failed to establish prejudice on this collateral attack requiring that
his Hobbs Act convictions be set aside.1
_________________________________________________________________
1 Moreover, while Ellis has argued that the erroneous jury instruction
was outcome determinative because the evidence did not demonstrate the
existence of a quid pro quo with respect to either Senator Tucker or Sen-
ator Tonkovich, Ellis has not argued that his Hobbs Act convictions must
be set aside because he is "actually innocent," see Murray v. Carrier, 477
U.S. 478, 496 (1986), and because there was insufficient evidence pres-
ented to the jury to support his convictions. See Jackson v. Virginia, 443
U.S. 307, 324 (1979). Of course, even had Ellis made these arguments,
we would still be required to affirm his Hobbs Act convictions because
the record shows that the jury was presented with more than sufficient

10
Turning then to Ellis's trial and the jury instructions on the West
Virginia bribery statute, the trial court first made clear that the trans-
actions underlying the predicate acts of state bribery were identical to
the transactions underlying the Hobbs Act charges:

Act one is alleged to be a violation of the Hobbs Act, the
extortion statute, and also alleged to be a violation of the
West Virginia bribery statute. So under racketeering act
number one, the special verdict form, is going to have an
entry for each of those. Now, the racketeering act will be
made out if it were proved as to either. Of course, you may
find it's proved as to both. You may find it's proved as to
neither, in which event it would not be made out at all.

The court does want to pause for a moment, though, and
take up the West Virginia bribery statute phase of this with
you. We've been through the Hobbs Act extortion. You
understand that in count two, which is housed in this racke-
teering act number one, and it's whether or not the same act,
if it existed at all, would constitute a violation of the state
statute.

The trial court then specifically instructed the jury on the elements
of the West Virginia bribery statute. As the court explained:
_________________________________________________________________
evidence establishing the quid pro quo element, though the jury was also
presented with conflicting evidence from which it could have found oth-
erwise. For example, while Ellis denied that he had given D'Annunzio
money to improperly influence passage of the "take-out" bill, the jury
was presented with evidence showing that Ellis had told D'Annunzio that
he could pay him $20,000 "to get the bill moving." Furthermore, Senator
Tucker testified that D'Annunzio had attempted to get his help on the
"take-out" bill and that he had said "I'll take care of you" or "I'll see that
there's something in it for you." D'Annunzio then paid $10,000 to Sena-
tor Tucker, which Tucker eventually returned to D'Annunzio.
D'Annunzio then returned the $10,000 to Ellis, a transaction observed by
federal agents. Certainly, this evidence provides an ample basis from
which a rational juror could find "that a public official has obtained a
payment to which he is not entitled, knowing that the payment was made
in return for official acts." Evans, 504 U.S. at 268.

11
 The West Virginia bribery statute provides, in pertinent part,
that:

"A person is guilty of bribery . . . if he offers, confers or
agrees to confer to or upon another . . . directly or indirectly:

"Any pecuniary benefit as consideration for the recipi-
ent's official action as a public servant."

Now, for purposes of that state statute, let me define the
following terms:

Benefit means a gain or advantage, or anything regarded,
or which might reasonably be regarded by the beneficiary as
a gain or advantage.

Pecuniary benefit in the form of money, tangible or intan-
gible property, or anything else the primary significance of
which is economic gain.

Official action means a decision, report, vote, or other
exercise of discretion.

Public servant means any officer, whether executive, judi-
cial, legislative, or ministerial, and whether elected or
appointed, or an employee of the state.

(Emphasis supplied.)

We hold that this jury instruction adequately covered the concept
of quid pro quo required under Evans. Without doubt, the instruction
that the act of state law bribery requires conferring a "pecuniary bene-
fit as consideration for the recipient's official action as a public ser-
vant" sets forth the Government's obligation to"show that a public
official has obtained a payment to which he was not entitled, knowing
that the payment was made in return for official acts." Evans, 504 U.S
at 268. In fact, the instruction called for under Evans and the instruc-
tion on the state bribery statute given here are nearly identical. We

12
therefore affirm the district court's decision to deny Ellis's motion to
vacate and set aside his Hobbs Act convictions. 2

III.

Ellis challenges his obstruction of justice conviction arguing that
in light of the Supreme Court's recent decision in United States v.
Aguilar, 115 S. Ct. 2357 (1995), insufficient evidence of guilt was
presented at trial. In particular, Ellis argues that Aguilar requires a
temporal nexus between the alleged obstruction and the criminal
investigation, and that in his case no such nexus exists because when
he attempted to induce his ex-wife, Janet Ellis, to provide false testi-
mony, she had not yet been contacted by the federal authorities. We
disagree.3
_________________________________________________________________
2 As well as attacking his Hobbs Act convictions based on the trial
court's failure to provide a specific quid pro quo instruction, Ellis attacks
his RICO convictions based on the same argument. He argues that the
trial court's instruction to the jury that it need not find a quid pro quo to
convict him of the Hobbs Act charges tainted the jury's finding that he
committed the predicate acts of state bribery. Thus, according to Ellis,
the RICO convictions must be set aside because both the Hobbs Act and
state bribery predicate acts are invalid. See United States v. Martinez, 14
F.3d 543 (11th Cir. 1993). The flaw in this logic is, however, apparent.
We assume that a jury follows its instructions. We, therefore, must
assume that Ellis's jury found a quid pro quo because it found that Ellis
did in fact commit the predicate acts of state bribery. With that finding,
it is clear that Ellis's jury would have found a quid pro quo with respect
to the Hobbs Act counts. See Hairston, 46 F.3d at 373-74. Cf.
McCormick, 500 U.S. at 274-75 (rejecting Government's theory that
appellate court could infer the existence of quid pro quo under Hobbs
Act based on jury's determination that defendant was guilty of income
tax violation because the jury might have inferred that payments were
not voluntary and, therefore, taxable even though they were campaign
contributions); Martinez, 14 F.3d at 553 n.5 (noting that the jury instruc-
tions concerning the state law claims failed to instruct on quid pro quo).
Thus, for the same reasons that we affirm the district court's denial of
Ellis's motion to the extent that it seeks to vacate and set aside his Hobbs
Act convictions, we also affirm the district court's denial of Ellis's
motion to vacate and set aside his RICO convictions.
3 Ellis also argues that he is free to raise his sufficiency of the evidence
challenge on collateral attack even though he failed to do so at trial or

13
The obstruction of justice statute, 18 U.S.C. § 1503, provides in
pertinent part that:

Whoever . . . corruptly or by threats or force, or by any
threatening letter or communication, influences, obstructs,
or impedes, or endeavors to influence, obstruct, or impede,
the due administration of justice, shall be fined not more
than $50,000 or imprisoned not more than five years, or
both.

(Emphasis added.)

In Aguilar the Supreme Court adopted the"nexus" requirement,
which demands that the Government show that the alleged obstruc-
tion of justice has "a relationship in time, causation, or logic with the
judicial proceedings." 115 S. Ct. at 2362. In other words, the "endeav-
or[ ] to influence" must have the "natural and probable effect" of
interfering with the due administration of justice. Id. Without such a
nexus or effect, the Government cannot show the requisite intent to
obstruct justice. Id. The Court then found that no nexus or effect had
been shown under the facts presented in that case.
_________________________________________________________________
on direct appeal. That is, Ellis argues that because the decision in Aguilar
shows that he is "actually innocent" of obstructing justice, he need not
meet the cause and prejudice requirement of Frady. See Murray v.
Carrier, 477 U.S. 478, 496 (1986) (stating that"where a constitutional
violation has probably resulted in the conviction of one who is actually
innocent," cause and prejudice for the procedural default need not be
shown); Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (concluding that
"the `ends of justice' require federal courts to entertain [federal habeas]
petitions only where the prisoner supplements his constitutional claim
with a colorable showing of factual innocence"). Often, of course, a
claim of actual innocence arises when new evidence is presented on col-
lateral attack. See, e.g., Schlup v. Delo, 115 S. Ct. 851 (1995); Herrera
v. Collins, 506 U.S. 390 (1993). In this case, however, Ellis does not
present any new evidence to support his claim of actual innocence.
Instead, he relies on the application of a Supreme Court decision (i.e.,
Aguilar) that was rendered after his direct appeal became final. Because
we proceed directly to the merits, we need not decide whether Ellis is
seeking to overcome Frady's "cause and prejudice" requirement based
on a claim actual innocence or whether Ellis is seeking and is entitled to
the retroactive application of a new decision affecting substantive law.

14
In particular, the evidence presented in Aguilar showed that the
defendant (a federal district court judge) lied to FBI agents about his
participation in an embezzlement case and his knowledge of a wiretap
authorized by another district court judge. Id. at 2361. At the time that
the defendant lied to the agents, the defendant was aware that a grand
jury had commenced an investigation of an alleged conspiracy to
influence the embezzlement case. The grand jury had not, however,
"authorized or directed the FBI investigation," id., and the Govern-
ment failed to show that the agents acted as "an arm of the grand jury"
or that the grand jury had even summoned the particular agents to tes-
tify. Id. at 2362. Therefore, the Court held that it was "speculative"
as to what use would be made of the defendant's false statements and
that it could not be said that the "natural and probable effect" would
be the interference with the due administration of justice. Id. at 2363.
The Court made clear that "uttering false statements to an investigat-
ing agent--and that seems to be all that was proven here--who might
or might not testify before a grand jury is [not] sufficient to make out
a violation . . . of § 1503." Id. at 2362.

The Court also provided a hypothetical to rebut the dissent's asser-
tion that it had read the word "endeavor" out of the statute. As the
Court stated:

Under the dissent's theory, a man could be found guilty
under § 1503 if he knew of a pending investigation and lied
to his wife about his whereabouts at the time of the crime,
thinking that a FBI agent might decide to interview her and
that she might in turn be influenced in her statement to the
agent by her husband's false account of his whereabouts.
The intent to obstruct justice is indeed present, but the
man's culpability is a good deal less clear from the statute
than we usually require in order to impose criminal liability.

Id. at 2363.

No doubt one can draw some similarities between Ellis's case, the
facts in Aguilar, and the hypothetical provided by the Court. When
Ellis spoke to his ex-wife, he knew that he was under grand jury
investigation. Also, Janet Ellis had not yet been subpoenaed or con-
tacted by federal authorities. Thus, as with the FBI agents in Aguilar,

15
Ellis did not attempt to influence the testimony of a person acting as
an arm of the grand jury or a person the grand jury had summoned
to testify. And, as with the hypothetical, Ellis attempted to create a
false story through his wife (albeit his former wife in this case). This,
however, is where the similarities end, and we conclude that the dif-
ferences are dispositive.

Specifically, Ellis did more than merely lie to a person who might
or might not be called to testify before a grand jury. The evidence
shows that Ellis instructed Janet Ellis to lie on his behalf. That is,
Ellis provided his ex-wife with a written collection of false statements
that she was to provide federal authorities if contacted. Thus, unlike
the defendant in Aguilar, Ellis attempted to have another person com-
mit perjury on his behalf.

Moreover, Ellis instructed Janet Ellis to lie on his behalf after fed-
eral agents had executed a search warrant and seized the $10,000 that
D'Annunzio had returned to Ellis, a transaction that the agents
recorded. And, unlike the federal agents in Aguilar or the Court's
hypothetical, Janet Ellis was actually involved in the underlying trans-
action. As the Government points out, Janet Ellis set up the contact
between D'Annunzio and Ellis on the "take-out" bill. Therefore, once
Ellis became aware that he was a target of a grand jury investigation,
one could reasonably presume--as did Ellis--that Janet Ellis would
be called to testify.

Thus, when taken together, the fact that Ellis instructed his ex-wife
to lie on his behalf, the fact that his instructions came on the heels of
the agents' search and seizure of the $10,000, and the fact that Janet
Ellis was involved in the underlying transaction distinguish this case
from Aguilar and the Court's hypothetical. These facts provide suffi-
cient evidence from which a rational juror could conclude that Ellis
had the intent to obstruct a pending grand jury investigation and that
the "natural and probable effect" of his efforts would be the interfer-
ence with the due administration of justice. In short, there is sufficient
evidence to show that Ellis's endeavor to obstruct justice had a rela-
tionship in time, causation, and logic with judicial proceedings.
Aguilar, 115 S. Ct. at 2362.

16
IV.

The district court's decision denying Appellant Ellis's section 2255
motion is affirmed.

AFFIRMED

17