UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-8894
UNITED STATES OF AMERICA,
Plaintiff-Appellee-
Cross-Appellant,
Cross-Appellee,
VERSUS
MIKE MOELLER and
PETER THOMAS MCRAE,
Defendants-Appellants-
Cross-Appellees,
and BILLIE B. QUICKSALL
Defendant-Cross-Appellee
Cross-Appellant.
Appeal from the United States District Court
For the Western District of Texas
April 8, 1996
Before POLITZ, Chief Judge, HILL1, and DeMOSS.
DeMoss, Circuit Judge:
Defendants Mike Moeller, Peter McRae and Billie Quicksall were
convicted on multiple counts of bribery, misapplication of state
funds, and a single count of conspiracy to commit those unlawful
acts. Defendants appeal their convictions, challenging the
sufficiency of the evidence, the admission of certain evidence, and
1
Circuit Judge of the Eleventh Circuit, sitting by
designation.
the prosecution's exercise of peremptory strikes against minority
jurors. The government cross-appeals, challenging the district
court's application of the sentencing guidelines. We affirm the
district court on the issues raised by the defendants' appeal. We
affirm in part, and reverse and remand in part, on the points
raised by the government's cross-appeal.
I. BACKGROUND
This appeal concerns allegations of deep-rooted corruption in
the Texas Department of Agriculture (TDA) and the Texas Federal
Inspection Service (TFIS). Defendants Mike Moeller, Peter McRae
and Billie Quicksall are all former officials of those Texas
agencies. The government charged that Moeller, McRae and Quicksall
misused their positions with TDA and TFIS by authorizing the award
of publicly-funded sham contracts to political consultants Robert
Boyd and Russell Koontz.2 This allegation forms the heart of the
counts alleging that the defendants misapplied state agency funds.
18 U.S.C. § 666(a)(1)(A) (prohibiting intentional misapplication of
state funds by state officials). The government further charged
that the defendants either (1) awarded the sham contracts to Boyd
and Koontz to compensate Boyd and Koontz for raising political
contributions to support the political campaigns of Moeller, and
then later, Texas Commissioner of Agriculture Jim Hightower, or (2)
that the campaigning and resulting contributions were a kickback
for the illicit contracts. This allegation forms the heart of the
2
Boyd and Koontz were indicted along with Moeller, McRae and
Quicksall, but their cases were severed prior to trial.
2
bribery counts. 18 U.S.C. § 666(a)(1)(B) (prohibiting state
officials from accepting or agreeing to accept anything of value
with the intent to be rewarded or influenced in connection with any
state agency transaction or series of transactions).3
From 1985 until 1990 defendant Moeller was the second in
command at TDA, serving as deputy commissioner under then
Commissioner of Agriculture Jim Hightower. Defendant McRae worked
closely with Moeller, holding positions as Moeller's special
assistant at TDA, and as the associate director of the TFIS.4
Defendant Quicksall also worked for Moeller, holding various
positions at both TDA and TFIS.
In the summer of 1987, defendant Mike Moeller decided to "test
the waters" to determine whether he could successfully mount a
campaign to replace then Texas Commissioner of Agriculture Jim
Hightower, who was at that time considering a campaign for a
congressional seat. Moeller, McRae, Quicksall, and several other
TDA or TFIS officials, met on several occasions at an Austin
restaurant for the purpose of planning a strategy. One approach
discussed was the formation of a political action committee (PAC)
3
Both the misapplication statute, 18 U.S.C. § 666(a)(1)(A),
and the bribery statute, 18 U.S.C. § 666(a)(1)(B), require that the
funds misapplied or the series of transactions affected be valued
at more than $5,000, and that the state agency involved receive
more than $10,000 in federal funds in any one year. None of the
parties dispute that the prerequisites for application of § 666
have been met in this case. Some of these issues were decided in
the previous appeal of this case. United States v. Moeller, 987
F.2d 1134 (5th Cir. 1993).
4
TFIS was created by cooperative agreement between the United
States Department of Agriculture and TDA.
3
to enhance Moeller's name recognition. In this regard, Moeller met
with Harold Bob Bennett in August 1987. Bennett testified that the
idea of a PAC to support Moeller's campaign was "definitely a
concept at that time."
Shortly thereafter, a PAC dubbed Building Texas Agriculture
(BTA or BTA PAC) was formed. Multiple witnesses testified that the
purpose of the PAC was to gather a war chest for Moeller's
potential campaign. BTA literature listed Moeller as the PAC's
founder. McRae opened the BTA bank accounts, made deposits, and
was authorized to spend the PAC funds. Moeller's secretary, Nelda
Trevino, kept the checks and financial records of BTA. Moeller
himself conceded at trial that the BTA PAC became a vehicle for
reimbursing his political expenses.
Moeller, McRae and Quicksall were all familiar with political
consultants Robert Boyd and Russell Koontz. Boyd and Koontz, both
former TDA officials, have been involved in Texas agriculture, and
particularly in the politics of Texas agriculture, for several
decades. Beginning in the fall of 1987, Boyd and Koontz became
actively involved in soliciting contributions to the BTA PAC for
Moeller's benefit. Boyd's address was listed as the BTA PAC's
mailing address. In June 1988, the same parties formed a non-
profit corporation, the Building Texas Agriculture Education Fund,
which was also intended to enhance Moeller's name recognition, and
they began soliciting contributions for that organization as well.
Multiple donors testified that they considered contributions to
either the PAC or the education fund to be political contributions
4
to Moeller's potential campaign. Funds contributed to the two BTA
funds were sometimes commingled.
Between August 1987 and May 1990, Moeller, McRae and Quicksall
also used their positions at TDA or TFIS to issue, approve or
administer a series of consulting contracts in favor of Boyd and
Koontz. Those contracts totalled in excess of $170,000. Multiple
witnesses provided credible testimony that the work required by
those contracts was either redundant or unnecessary, that the work
was never performed, or that the contracts required consultation on
matters beyond the jurisdiction of the contracting agency. The
defendants themselves testified only that the work performed under
the contracts involved oral discussions about the subject matter of
the particular contract, and visits with TDA and TFIS regulated
businesses, and banks in which TFIS proposed to deposit funds.
There is no dispute that Boyd and Koontz were actively engaged
in furthering Moeller's campaign. The record contains overwhelming
evidence that the primary purpose of the trips taken by Boyd and
Koontz was political. Throughout 1988, Quicksall, with the
knowledge of Moeller and McRae, visited TDA and TFIS regulated
businesses accompanied by Boyd, and on some occasions by Koontz.
Boyd and Koontz financed some of those trips with agency funds
furnished under their TDA and TFIS consulting contracts. Numerous
witnesses testified that Quicksall usually began these visits with
agency business, but that the talk quickly turned to the subject of
political contributions. Campaign contributions were similarly
elicited from TDA and TFIS employees, and officers of banking
5
institutions in which TFIS proposed to deposit funds. Multiple
donors testified that they felt compelled to chose between making
a political contribution and receiving unfavorable treatment by TDA
or TFIS.
In January 1989, Jim Hightower announced that he would not
seek national office, and that he would instead seek another term
as Texas Commissioner of Agriculture. From January 1990 until at
least May 1990, while Boyd and Koontz were still operating under
contracts awarded or administered by the defendants in this case,
Boyd and Koontz solicited campaign contributions for Hightower's
campaign using similar tactics.
Defendant Mike Moeller was convicted on one count of
misapplication of state funds, in violation of 18 U.S.C. §
666(a)(1)(A), and five counts of bribery, in violation of 18 U.S.C.
§ 666(a)(1)(B). Defendant Peter McRae was convicted on one count
of misapplication of state funds, in violation of 18 U.S.C. §
666(a)(1)(A), and three counts of bribery, in violation of 18
U.S.C. § 666(a)(1)(B). Defendant Billie Quicksall was convicted on
one count of misapplication of state funds, in violation of 18
U.S.C. § 666(a)(1)(A), and two counts of bribery, in violation of
18 U.S.C. § 666(a)(1)(B). All three defendants were also convicted
on a single count of conspiracy to commit those offenses, in
violation of 18 U.S.C. § 371.
6
II. DEFENDANTS' APPEAL
A. Sufficiency
Defendants first argue that the evidence was insufficient to
support their convictions. We disagree. The record contains
overwhelming evidence that the consulting contracts issued to Boyd
and Koontz were sham contracts, and that little work was performed
in return for the state funds paid by TDA and TFIS. TDA and TFIS
employees testified that they never consulted with either Boyd or
Koontz, although the subject matter of the contracts concerned
agency responsibilities within their area. Other contracts were
issued for consultation on areas outside the jurisdiction of the
contracting agency. Several contracts were issued for the single,
non-specific purpose of "consulting on the joint operating
agreement" between TDA and TFIS. No written product was ever
produced in exchange for the state funds paid Boyd and Koontz,
which in the aggregate exceeded $170,000. Even the defendants do
not identify any work completed under the contracts, except visits
to regulated businesses and service providers, and advice given
orally to the defendants themselves. The sham nature of the
contracts alone is sufficient to support Moeller's conviction on
count two for misapplication of TDA funds, and McRae's and
Quicksall's conviction on count five for misapplication of TFIS
funds. 18 U.S.C. § 666(a)(1)(A).
The heart of the defendants' sufficiency challenge is that the
government failed to demonstrate any connection between the
issuance of the consulting contracts in Boyd's and Koontz' favor,
7
and their independent campaigning work on behalf of Moeller. That
connection is required to demonstrate both the defendants'
agreement to violate the law on the conspiracy count, and the
defendants' intent to be influenced or rewarded in connection with
the contracts, on the bribery counts. 18 U.S.C. § 371; 18 U.S.C.
§ 666(a)(1)(B). Again, we disagree on this sufficiency challenge.
The record adequately supports the required inference that the
essential purpose of the sham contracts was to compensate Boyd and
Koontz for raising political contributions to benefit Moeller, and
later Hightower. Boyd and Koontz traveled with Quicksall to visit
TDA and TFIS regulated businesses on government time, using funds
made available by the consulting contracts, for the purpose of
soliciting campaign contributions. Moreover, the requests for
campaign contributions were not made casually or in a manner that
was incidental to the conduct of agency business. Quicksall, who
was travelling in his capacity as an agency official, was at least
once assigned the task of holding the money collected, and recorded
contributions in the same small ledger used for agency business.
Quicksall, who knew that Boyd and Koontz were asking $1,000 from
each "target," was also aware that soliciting contributions in the
context of agency business raised serious legal and ethical
questions under Texas law. Indeed, Quicksall attempted to
anticipate when the request for money was coming, and would try to
extricate himself from the room before the request was made.
Quicksall was not always successful in this effort, and numerous
8
representatives from regulated entities testified that they felt
intimidated or coerced into contributing to Moeller's campaign.
Nor does the record support the defendants' argument that they
were either unaware of, or uninfluenced by, the relationship
between the sham contracts and Boyd's and Koontz's campaign
solicitations. Two agency officials testified that Quicksall, who
was obviously aware of the campaigning, told them on different
occasions that the consulting contracts were unnecessary to agency
business. However, one of those individuals testified that
Quicksall had acknowledged that the contracts were politically
motivated, and that he had to "deal with politics" as a part of his
job with the agency.
McRae was heavily involved in both the administration of the
consulting contracts, and in the management of funds received by
BTA. McRae instructed other agency officials to approve invoices
submitted by Boyd and Koontz without instructing them on the
established procedure for being sure the work was performed. The
record also demonstrates that McRae routinely gave information to
substantiate the payment of these invoices "off the top of his
head," without resort to any supporting documentation. The record
also contains numerous exhibits documenting McRae's control over
BTA funds. McRae withdrew more than $23,000 in cash from the BTA
account. Although the purpose of those withdrawals could not be
explained by defendant Moeller (McRae did not testify), he opined
that some of the money was paid to McRae personally as a
"management fee."
9
Moeller's and McRae's knowledge may also be inferred from
circumstances surrounding the establishment of the PAC, maintenance
of the accounts used to hold campaign contributions, and testimony
indicating that they probably directed, and were at least aware of,
Quicksall's travels with Boyd and Koontz. Quicksall testified that
he acted on instructions from Moeller and McRae. McRae handled the
bank accounts into which BTA funds were deposited. Moeller's
secretary Nelda Trevino kept records of the political contributions
received by BTA. Although Trevino testified that she kept the
records at home, at least one TDA official testified that he had
seen her writing BTA checks at her desk.
Moeller argues separately that he was unaware that Boyd and
Koontz were engaged in political fundraising for his benefit at the
same time they were being paid under TDA and TFIS consulting
contracts. Moeller's own associate deputy commissioner testified
at trial that he personally brought to Moeller's attention the fact
that Boyd and Koontz were fundraising at the same time that they
were acting under TDA and TFIS consulting contracts, and that such
conduct might well be considered inappropriate. Tom Fordyce,
another Moeller assistant, testified that Boyd and Koontz told him
they were travelling to visit TDA and TFIS regulated businesses to
raise political campaign funds for Moeller. Moeller himself wrote
thank you notes for contributions received by BTA. Moreover, Boyd
and Koontz frequently visited TDA, and Moeller's office in
particular, during the relevant time period. Moeller's argument
that he was unaware that consultants on important agency matters
10
who frequently visited his offices, were using his name, his
employees, and his secretary to manage campaign funds for his
benefit, is neither credible nor supported by the record.
All three defendants make additional challenges to the
sufficiency of the evidence based on the temporal relationship
between individual consulting contracts and the political
solicitations of Boyd and Koontz. In one such example, the
defendants claim that the August 1987 consulting contract, which
was the subject of Moeller's and McRae's bribery conviction on
count three and also supported Moeller's misapplication conviction
on count two, could not have been issued for a political purpose
because no fundraising took place until late that year when
Hightower announced he would not seek reelection. We disagree.
That premise ignores substantial record evidence demonstrating that
all three defendants and Boyd were either aware that a PAC would be
formed or participated in maintaining the funds deposited in BTA
accounts. It also ignores the close temporal proximity between the
initial consulting contracts and the time that the BTA PAC was
established. In a similar argument, Quicksall challenges his
convictions premised upon a February 1988 consulting contract
because no fundraising was performed until summer 1988. This
argument is likewise unpersuasive. Although the consulting
contracts were of necessity signed on a given date, many of those
contracts ran for a number of months, including months in which
fundraising was being performed. Indeed, the August 1987 contract
was signed only three days before performance under that contract,
11
which purportedly ran from July 1, 1987 through August 31, 1987,
was to have been completed.
The record amply supports the jury's conclusion that the
defendants were acting on their agreement to exchange state funds
for Boyd's and Koontz' political efforts. Viewing the facts in a
light most favorable to the jury's verdict, a reasonable trier of
fact could have found all of the essential elements required to
convict on each of the individual defendants' counts of conviction.
United States v. McCord, 33 F.3d 1434, 1439 (5th Cir. 1994), cert.
denied sub nom, 115 S. Ct. 2558 (1995).
B. Evidentiary issues
Defendants contend that the district court's admission of
evidence relating to Boyd's and Koontz' fundraising for Hightower
was erroneous because the evidence demonstrated two distinct
episodes of fundraising, rather than a single conspiracy as alleged
in the indictment. Defendants argue they were unfairly prejudiced
because the jury was poisoned by evidence that Boyd and Koontz
engaged in strong-arm tactics on behalf of Hightower. Ironically,
the defendants support this argument with evidence that Boyd and
Koontz used tactics very similar to those employed on behalf of
Moeller. We doubt the jury gave much consideration to the small
amount of evidence relating to the Hightower fundraising. Indeed,
Quicksall was acquitted on the only two counts charging bribery in
relation to the Hightower fundraising. Fed. R. Civ. P. 103(a);
United States v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996) (error
12
may not be predicated upon a ruling admitting evidence unless a
substantial right of the party is affected).
More importantly, all three defendants were continuously
involved in the administration of consulting contracts in favor of
Boyd and Koontz during the period when those gentlemen were raising
funds for Hightower. The Moeller fundraising and the Hightower
fundraising served the same purpose, that of keeping agency
incumbents firmly entrenched. Because the co-conspirators, the
purpose, and the methods employed for the Moeller fundraising and
the Hightower fundraising were virtually identical, we have no
trouble concluding that the evidence demonstrated a single
conspiracy. See United States v. DeVarona, 872 F.2d 114, 118 (5th
Cir. 1989) (factors considered in determining whether a single
conspiracy was proven include the existence of a common goal or
purpose, the nature of the scheme, and whether there are
overlapping participants). The district court did not abuse its
discretion by admitting evidence relating to the Hightower
fundraising. Skipper, 74 F.3d at 612 (evidentiary errors are
reversed for abuse of discretion).
Defendants also argue that the district court improperly
admitted evidence of extrinsic bad acts without making the
evidentiary findings required by United States v. Beechum, 582 F.2d
898 (5th Cir. 1978) (en banc), cert. denied, 99 S. Ct. 1244 (1979).
See Fed. R. Civ. P. 404(b). One such piece of evidence concerned
the existence of a consulting contract issued to TDA general
counsel Jesse Oliver, who was called to testify at trial by the
13
defense. The district court allowed the prosecution to question
Oliver regarding the existence of the contract, but granted the
defendants' Rule 404(b) objection by refusing to allow any evidence
that the contract was improper. Defendants also complain about
admission of evidence (1) showing the existence of another
consulting contract issued by defendant McRae to gain political
favor with a prominent individual, and (2) describing an incident
in which Boyd and Koontz pressured a TDA employee to solicit a
political contribution from the employee's father. As to these
last two items of evidence, the defendants did not make any
contemporaneous objection on Rule 404(b) grounds. The district
court did, however, address the character of the challenged
evidence in its ruling on the defendants' pretrial motion for Rule
404(b) notice. The district court found, and we agree, that the
challenged evidence was simply further direct evidence relating to
unindicted acts of the conspiracy. See United States v. Aleman,
592 F.2d 881, 885 (5th Cir. 1979) (Rule 404(b) principles are
"inapplicable when some offenses committed in a single criminal
episode become `other acts' because the defendant is indicted for
less than all of his actions."). Because the challenged evidence
was not extrinsic to the conspiracy, the district court's admission
of that evidence was not error.
3. Batson
Defendants contend that the district court erred by overruling
their Batson challenge to the prosecution's peremptory strike of
three minority jurors -- two Hispanic and one African-American.
14
See Batson v. Kentucky, 106 S. Ct. 1712 (1986). At trial, the
prosecution articulated adequate race-neutral reasons for the
peremptory strikes. The prosecution claimed at trial that the
length and complexity of the case required jurors with at least a
high school education. That policy was exercised across the board
and resulted in the exclusion of both minority and non-minority
panel members. Of the three excluded minority jurors, two had
about nine years of formal education, and the other had no formal
education. Additional reasons were offered as to two of the
jurors. The panel member with no formal education seemed to be
having difficulty with the questions and was unable to competently
fill out the juror questionnaire. One of the remaining jurors also
admitted that he had lied on tax forms.
We have previously recognized that the education of a panel
member may be considered in the appropriate case. See United
States v. Hinojosa, 958 F.2d 624, 632 (5th Cir. 1992) ("a trial
judge does not abuse his discretion by allowing exclusion of a
venireman by peremptory strikes if that venireman's education is
insufficient when taking into account the legal issues to be
presented"). Defendants argue that Batson jurisprudence should
recognize disparate education as a continuing badge of slavery. We
do not exclude the possibility that their argument may have merit
in another case. In this case, however, the complex nature of the
conspiracy, and the number of interconnected offenses alleged,
adequately support the district court's determination that the
prosecution articulated adequate race-neutral reasons for the
15
peremptory strikes. See Hinojosa, 958 F.2d at 631-32 (a trial
judge's decision on a Batson issue is essentially one of
credibility, which is entitled to great deference).
III. GOVERNMENT'S CROSS-APPEAL - SENTENCING
All three defendants were sentenced according to an adjusted
offense level of 18 and a criminal history category of I, which
specifies an applicable guideline range of 27 to 33 months.
Defendant Moeller was sentenced to 27 months, the minimum within
the applicable range, and was fined $ 56,000. Defendant McRae
likewise received the minimum sentence of 27 months and was fined
$15,000. Defendant Quicksall's sentence was reduced by the
district court's finding of duress pursuant to U.S.S.G. § 5K2.12.
Quicksall was sentenced to 12 months in prison and a fine of
$8,000.
The district court calculated the offense level by assigning
a base offense level of 8, a level falling between the two
potentially applicable published guidelines, U.S.S.G. § 2C.1.1
covering bribery and U.S.S.G. § 2C1.2 covering gratuities. The
district court then adjusted the base offense level upward by 2
levels because the offense involved more than one transaction
(U.S.S.G. § 2C1.1(b)(2)(A) or § 2C1.2(b)(2)(A)), and upward 8
levels based on the involvement in the offense of a high-level
official (U.S.S.G. § 2C1.1(b)(2)(B) or § 2C1.2(b)(2)(B)).
Defendants Moeller and McRae moved for and were granted a stay
of punishment pending appeal. Defendant Quicksall surrendered to
16
prison authorities in December 1993, and completed his 12 month
sentence in 1994.
On cross-appeal, the government contests the district court's
application of the 1993 sentencing guidelines. See U.S.S.G. §
1B1.11. Specifically, the government challenges the district
court's: (1) creation of a "compromise" offense level between the
two potentially applicable published guidelines; (2) refusal to
adjust Moeller's and McRae's offense level based on their role in
the offense; and (3) departure downward for Quicksall on the basis
of duress.
A. Selection of a Compromise Guideline
At sentencing, the parties argued extensively about whether
U.S.S.G. § 2C1.1 or U.S.S.G. § 2C1.2 was the guideline applicable
to the conduct proven. Section 2C1.1 covers the offering, giving,
soliciting or receiving of a bribe, and carries a base offense
level of 10. Section 2C1.2 covers the offering, giving, soliciting
or receiving of a gratuity, and carries a base offense level of 7.
The statutory index to the sentencing guidelines provides that both
provisions are potentially applicable to convictions under 18
U.S.C. § 666(a)(1)(B).
After struggling with the issue at length, the district court
compromised by settling upon a base offense level of 8, reasoning
that the offense conduct was somewhat more culpable than a mere
gratuity, but somewhat less culpable than bribery. Anticipating
difficulty with its selection of a base offense level not specified
in a published guideline, the district stated in the alternative
17
that it would have "departed downward" in this case because (1) the
defendants inherited a system of corruption that was not of their
own devising; (2) the amount of money involved was, relatively
speaking, not large; (3) the money collected was not intended for
an unlawful purpose; and (4) the personal benefit to the individual
defendants was indirect and insignificant.
The government contends that the district court was without
authority to create a "compromise" base offense level. We agree.
Title 18 U.S.C. § 3553 provides that the district court must impose
a sentence within the range established by the Sentencing
Commission for the applicable category of offense, unless the court
expressly finds aggravating or mitigating factors that are not
adequately taken into consideration by the guidelines. When the
statutory index lists more than one potentially applicable
guideline, the district court is charged with choosing from among
the guidelines specified the one that is most appropriate based on
the nature of the offense conduct. U.S.S.G. § 1B1.2, comment. n.1;
U.S.S.G. App. A - Statutory Index at 369; see United States v.
Beard, 913 F.2d 193, 197 (5th Cir. 1990).
While we are sympathetic to the district court's dilemma, we
cannot sanction the creation of a compromise guideline provision
merely because the case presents a difficult factual choice about
which guideline should be applied. To do so would seriously erode
the determinative nature and purpose of the sentencing guidelines.
See generally, U.S.S.G. Pt. A (policy statement on basic approach
of guidelines). That premise is particularly true when, as here,
18
the offense conduct is clearly contemplated by both potentially
applicable guidelines.
Defendants offer no authority or argument in support of the
district court's creation of the "compromise" base offense level.
Instead, the defendants argue that the resulting sentence can be
justified, either because the district court settled on U.S.S.G. §
2C1.1 (level 10) and departed downward for the articulated reasons,
or because the district court settled on U.S.S.G. § 2C1.2 (level 7)
and departed upward for reasons not articulated. The government
makes an argument premised on the alternative holding as well,
asserting that the mitigating factors articulated by the district
court were improper, or in the alternative, that the district
court's fact findings on those issues were clearly erroneous.
We will not consider the district court's alternative holding.
The district court's selection of an erroneous base offense level
resulted in application of an erroneous guideline range. That
error cannot be cured by crafting an alternative holding which
posits the operation of a departure on a correctly calculated
guideline range. Nor is it clear from the transcript exactly which
guideline provision the district court preferred. The court's
statement that it would have departed downward, and its
articulation of mitigating factors support the proposition that it
favored § 2C1.1, the bribery provision. On the other hand, other
statements by the district court, and its selection of a base
offense level closer to 7, the level provided by § 2C1.2, strongly
support the view that the court was leaning more towards the
19
gratuity guideline. Nor will we accept the government's invitation
to hold that 18 U.S.C. § 666(a)(1)(B) bribery convictions must be
sentenced using U.S.S.G. § 2C1.1. We do not read United States v.
Santopietro, 996 F.2d 17, 20-21 (2d Cir. 1993), cert. denied, 114
S. Ct. 921 (1994) or United States v. Mariano, 983 F.2d 1150, 1158-
60 (1st Cir. 1993) as establishing any such per se rule, and we
decline to establish that rule in our own Circuit. The applicable
guideline in any given case is a fact-intensive determination to be
made by the district court.
The sentencing guidelines charge the district court with the
burden of selecting the guideline provision most applicable to the
offense of conviction. We decline to substitute our own more
detached assessment of the extensive evidence presented by both
parties for the judgment of the district court, particularly where
to do so would require that we engage in conjecture about the basis
of the district court's alternative holding. See 18 U.S.C. § 3553
(requiring that the district court articulate reasons for departing
from the applicable guideline range). Remand for resentencing is
appropriate. On remand, the district court must select the
appropriate guideline from among the potentially applicable
published guidelines. Once an applicable guideline range is
established, aggravating or mitigating factors can be considered by
the district court and the basis for any departure, whether upward
or downward, can be articulated in accordance with 18 U.S.C. §
3553.
20
B. Refusal to Adjust for Role in the Offense
The PSR recommended a 4 level adjustment based on defendant
Moeller's leadership role and a 3 level adjustment based on
defendant McRae's supervisory role in the offense. See U.S.S.G. §
3B1.1(a) & (b). The district court denied that adjustment,
essentially relying upon the same factors articulated in support of
the district court's assignment of a compromise base offense level:
(1) that the defendants had inherited a system of corruption; (2)
that the system of corruption was not of their own devising; (3)
that the relatively small amount of money involved was not intended
for an unlawful purpose; and (4) that the personal benefit to the
defendants was indirect and insignificant.
We review the district court's finding concerning Moeller's
and McRae's role in the offense for clear error. United States v.
Buchanan, 70 F.3d 818, 829 (5th Cir. 1995), cert. denied, 1996 WL
96864 (Mar. 25, 1996). Defendant Moeller occupied a high-ranking
position within TDA, and was the political candidate for much of
the fundraising involved in the offense. McRae was his assistant,
and worked closely with Moeller in a variety of capacities.
Nonetheless, the record as a whole does not support the conclusion
that Moeller and McRae either initiated the bribery scheme or
participated in a more culpable manner than other co-conspirators,
with the possible exception of Quicksall. The defendants'
"inheritance" of a historically corrupt and deep-rooted system is
not immaterial. The continuance of the exact same conduct after
Moeller announced he would not run for office indicates that the
21
scheme alleged was not dependent upon the managerial or leadership
roles of these defendants, and depended instead largely upon the
energy and creativity of Boyd and Koontz. See United States v.
Gadison, 8 F.3d 186, 196 (5th Cir. 1993) (listing a defendant's
involvement in the planning and organization of the offense as a
relevant factor in determining a defendant's role in the offense).
We affirm the district court's refusal to grant an upward
adjustment based on Moeller's and McRae's role in the offense.
C. Downward departure for Duress - Quicksall
Based on an adjusted offense level of 18 and a criminal
history category of I (and leaving aside the error already
discussed), Quicksall would have been subject to a sentence of
between 27 and 33 months. The district court sentenced Quicksall
to 12 months only, departing downward based on its finding that
Quicksall committed the offense under duress. See § 5K2.12 (the
court may decrease the sentence below the applicable guideline
range if the defendant commits an offense because of serious
coercion, blackmail or duress).
The district court considered Quicksall's age (60), his lack
of an advanced education (some college), and his length of
government service in concluding that Quicksall was economically
and psychologically pressured by fear of career loss into following
the orders he was given. This is not the type of duress
contemplated by § 5K2.12 of the sentencing guidelines. "The
Commission considered the relevance of economic hardship and
determined that personal financial difficulties and economic
22
pressures upon a trade or business do not warrant a decrease in
sentence." § 5K2.12. Nor is the departure justified by the
district court's additional observations concerning Quicksall's
personal characteristics. "One of the primary goals of the
Sentencing Guidelines is to impose a sentence based on the crime,
not the offender." United States v. Vela, 927 F.2d 197, 199 (5th
Cir.), cert. denied, 112 S. Ct. 214 (1991); see, e.g., U.S.S.G. §
5H1.1 (age not ordinarily relevant when determining whether
sentence should be outside applicable range). The record does not
support a downward departure on the basis of duress. On remand,
Quicksall should be resentenced without resort to § 5K2.12.
There is ample support in the record, however, for the
district court's additional observations that Quicksall, for a
variety of reasons, was plainly among the least culpable of those
involved in the conspiracy. That fact would support a 4 level
downward departure on the basis that Quicksall was a minimal
participant. See U.S.S.G. § 3B1.2(a) & comment. 1; Gadison, 8 F.3d
at 197. Quicksall clearly had an inadequate understanding of the
contracts-for-politics scheme, as compared to his superiors at TDA
and TFIS and political consultants Boyd and Koontz. As recognized
by the district court, Quicksall's inability to grasp the finer
points of the conspiracy was probably the reason he was selected
for the role he played. A defendant's lack of understanding or
knowledge about the scope and structure of the criminal enterprise
is indicative of a minor or minimal role in the offense. U.S.S.G.
§ 3B1.2 comment. 1. United States v. LaValley, 999 F.2d 663, 665
23
(2d Cir. 1993). Quicksall filed timely objections to the PSR's
failure to adjust the base offense level on the basis that he
played a minimal role in the offense.
Quicksall must be resentenced without any departure for
duress. Quicksall may, however, be entitled to either an adjust-
ment of his offense level, or a departure from the applicable
guideline range for other reasons, once the correct base offense
level is determined. The district court is encouraged to
reconsider the applicability of U.S.S.G. § 3B1.2 and U.S.S.G. §
3E1.1, and to make express findings of fact on those issues when
resentencing Quicksall.
CONCLUSION
There was sufficient evidence to support the jury's verdict.
The district court did not commit reversible error by admitting
certain evidence challenged as extrinsic to the offense or by
overruling the defendants' Batson challenge to the prosecution's
exercise of peremptory strikes. The defendants' convictions are
AFFIRMED.
The district court erred by creating a "compromise" base
offense level not specified in the guidelines. Moreover, the
district court's downward departure as to Quicksall on the basis of
duress is not supported by the record. The sentence imposed by the
district court as to all three defendants is VACATED and the case
is REMANDED to the district court for resentencing.
24
United States v. Moeller
Court: Court of Appeals for the Fifth Circuit
Date filed: 1996-04-09
Citations: 80 F.3d 1053
Copy CitationsCombined Opinion