United States v. Williams

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________

No. 00-60587
_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT LESLIE WILLIAMS,

Defendant - Appellant.

---------------------------------
Appeal from the United States District Court
for the Southern District of Mississippi
---------------------------------
August 30, 2001

Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and LITTLE*,
District Judge.

BENAVIDES, Circuit Judge:

Robert Leslie Williams (“Defendant”), a former City

Councilman of the City of Jackson, Mississippi, appeals his

conviction for conspiracy to commit extortion and solicitation of

bribery payments relating to the renewal of Time Warner’s

contract to provide cable television in Jackson. Finding no

reversible error in his conviction, we AFFIRM.

I. Factual and Procedural Background

*
District Judge of the Western District of Louisiana,
sitting by designation.
 On December 9, 1997, the Jackson City Council voted 4 to 3

to reject Time Warner’s proposal to renew its cable franchise.

Defendant was one of the four councilmembers that voted against

the renewal. Following the December 9 vote of the city council,

Sandy McKnight, a maintenance engineer for Time Warner, was

contacted by two alleged conspirators, Roy Dixon and a car dealer

named Robert Williams.1 Car dealer Williams and Roy Dixon were

affiliated with a local radio station where McKnight worked part-

time. McKnight agreed to meet the following morning, December

13, 1997, to discuss Time Warner’s cable franchise renewal. At

the meeting, car dealer Williams sought McKnight’s assistance in

making contact with the principal negotiator for Time Warner in

the franchise renewal discussions with the city. He stated that

he could get the franchise renewal processes going again if Time

Warner would agree to his terms – a $150,000 payment. When

McKnight began to inquire about how the matter could be brought

before the council again for another vote, car dealer Williams

responded that he could arrange a meeting with someone who could

answer such questions. Car dealer Williams specifically

instructed McKnight, however, not to mention the $150,000 payment

during the subsequent meeting.

1
There are two men named Robert Williams involved in this
case. The first is a car salesman in Jackson, Mississippi and will
be referred to as car dealer Williams. The second is the defendant
who, at the time, was serving as a city councilperson for the City
of Jackson. The latter is referred to as Defendant. The two men
are not related.

2
 Later that same day, McKnight received a page from car

dealer Williams directing him to a meeting at the dealer’s office

at Blackwell Chevrolet. When McKnight arrived, car dealer

Williams was present along with Defendant and Dixon. McKnight

inquired of Defendant how another vote of the city council could

occur. McKnight, as instructed, did not mention the $150,000

payment during the meeting. However, McKnight did ask what would

be required in order for Time Warner to get the contract renewal.

Defendant responded that if Time Warner agreed to the car

dealer’s terms then Defendant was not 99%, but 100% sure that

Time Warner would get a majority vote of the city council.

McKnight reported the meeting to the company’s division

president. The president told McKnight to inform car dealer

Williams that Time Warner’s answer was “no.” The company then

informed the FBI of the meeting.

The FBI requested that McKnight call back car dealer

Williams, indicate that negotiations between Time Warner and the

city were going poorly, and inquire whether they could still do

business. The FBI recorded the telephone call between McKnight

and car dealer Williams, in which Williams repeated the

essentials of the proposed agreement, including that he could

deliver the needed council votes if Time Warner paid him $150,000

in cash.2 McKnight then arranged for car dealer Williams to meet

2
Specifically, car dealer Williams stated that “I can get
those Hershey bars in one, two, three,” and “I, then I can go ahead

3
with Agent James Barnes, undercover as the franchise director for

Time Warner. Car dealer Williams, along with alleged co-

conspirators Dixon and Jackson police officer Robert Love,

arrived in a van at Barnes’ hotel and picked him up. Defendant

was not present during the subsequent van ride, in which the

parties discussed car dealer Williams’ proposal. During the

conversation, recorded by Agent Barnes, Dixon confirmed the terms

of the proposal by holding up a sign that read “$150,000.”

Shortly thereafter, without explanation, car dealer Williams

called Agent Barnes and told him the deal was off. The FBI

subsequently arrested all of the co-conspirators, including

Defendant.

In a four count indictment, Defendant was charged in Counts

1 and 2 with conspiracy and attempt to commit extortion under

color of official right, in violation of 18 U.S.C. § 1951(a). In

Counts 3 and 4, Defendant was charged with aiding and abetting

others in the corrupt solicitation and acceptance of bribery

payments, in violation of 18 U.S.C. § 666(a)(1)(B) and § 2.

Counts 1 and 3 related to a potential contract pending before the

City Council between Time Warner Cable and the City of Jackson.

Counts 2 and 4 concerned a zoning petition for a local strip club

and get those two Hershey bars lining up.” The discussions between
McKnight and the conspirators were conducted in code. The oft-used
labels “Hershey bars” and “Milky Way bars” were thinly veiled
references to African-American and white members of the city
council. Additionally, car dealer Williams used the terms “team
players and Jackson State players.”

4
pending before the City Council. At Defendant’s first trial, the

jury was unable to reach a verdict on any of the counts and the

court declared a mistrial. The district court ordered a second

trial to begin approximately two weeks later. At the second

trial, Defendant was convicted on Counts 1 and 3, the Time Warner

Cable matter; he was acquitted on Counts 2 and 4. Defendant

filed a timely appeal with this Court.

II. Jury Venire

The jury for Defendant’s first trial was selected from a

venire drawn from the Jackson Division of the Southern District

of Mississippi. For the second trial, the judge ordered the

venire drawn from the entire Southern District. The district

court’s asserted reason for expanding the venire was to avoid the

media intensity that had occurred in the Jackson Division during

the first trial. Defendant asserts two challenges to the

district court’s action: first, that his due process right to a

jury drawn from a fair cross section of the community was

violated; and second, that his equal protection right was

violated by the expansion of the venire. In considering

Defendant’s challenges, we review the district court’s findings

of fact for clear error and its determinations of law de novo.

United States v. Alix, 86 F.3d 429, 434 (5th Cir. 1996).

5
 A. Due Process Challenge

Defendant alleges that the underrepresentation of African-

Americans on the venire for his second trial violated his right

to due process. The Sixth Amendment and the Due Process Clause

of the Fifth Amendment require that a jury be drawn “from a fair

cross section of the community.”3 Taylor v. Louisiana, 419 U.S.

522, 527, 95 S.Ct. 692, 696 (1975). To establish a prima facie

violation of the fair cross section requirement:

the defendant must show (1) that the group alleged to be
excluded is a “distinctive” group in the community; (2) that
the representation of this group in venires from which
juries are selected is not fair and reasonable in relation
to the number of such persons in the community; and (3) that
this underrepresentation is due to systematic exclusion of
the group in the jury selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668 (1979).

In so far as African-Americans constitute a distinctive group in

the community, the first requirement of Defendant’s prima facie

case is met. McGinnis v. Johnson, 181 F.3d 686, 689 (5th Cir.

3
The Government suggests that Defendant has waived his Sixth
Amendment/due process argument by failing to comply with the Jury
Selection and Service Act, 28 U.S.C. § 1861, et. seq. While
Defendant did fail to comply with the Act, and thus has waived any
claims under the Act, the Government incorrectly suggests that the
Act provides the exclusive remedy for claims that Defendant was
denied a fair cross section of the community. The very case the
Government relies upon to establish waiver, United States v.
Kennedy, 548 F.2d 608 (5th Cir. 1977), held that statutory claims
under the Act are waived for noncompliance with the required
procedures, but then went on to consider separately a due process
claim for denial of a fair cross section of the community.
Accordingly, even though Defendant did not move to stay proceedings
as required by the Act, he can still pursue a Sixth Amendment/due
process claim.

6
1999). With respect to the second requirement of his prima facie

case, Defendant offers as evidence of underrepresentation the

fact that the venire selected from the Jackson Division was

comprised of 51 potential jurors, 21 of which were African-

American; while the venire for the second trial, selected from

the entire Southern District of Mississippi, was composed of 78

potential jurors, only 20 of which were African-American.

In determining whether the venire is a fair and reasonable

representation of the community, the relative compositions of

Defendant’s two venire panels is not relevant. The Duren test

instead focuses on whether the representation of African-

Americans in the challenged venire was fair and reasonable in

relation to the number of African-Americans in the community.

The relevant community consisting of those individuals who are

eligible to serve as jurors in the Southern District of

Mississippi. See Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct.

397, 416 (1953) (holding that a jury list must reasonably reflect

“a cross-section of the population suitable in character and

intelligence for that civic duty”). Moreover, “[Defendant] must

demonstrate . . . not only that [African-Americans] were not

adequately represented on his jury but also that this was the

general practice in other venires.” Timmel v. Phillips, 799 F.2d

1083, 1086 (5th Cir. 1986); see United States v. DeFries, 129

F.3d 1293, 1301 (D.C.Cir.1997) (“Underrepresentation of a

7
cognizable group in a single venire, without evidence of a

greater pattern, is insufficient to establish the “systematic

exclusion of the group” required by Duren . . . From a small

sample size based on one venire it is difficult to determine

whether the disparity is random or systemic.” (citations

omitted)); Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.

1989) (“Evidence of a discrepancy on a single venire panel cannot

demonstrate systematic exclusion.”); United States v. Miller, 771

F.2d 1219, 1228 (9th Cir.1985) (holding that the Duren Court’s

use of the plural when describing “venires” from which “juries”

are selected indicated that a violation of the

underrepresentation element cannot be premised on

underrepresentation on a single jury venire).

Defendant provides absolutely no evidence regarding the

percentage of African-Americans in the community, nor the

composition of other venires drawn from the Southern District.

Absent evidence of the percentage of African-Americans in the

community, we have no baseline against which to compare the

composition of Defendant’s venire. See Duren, 439 U.S. at 668

(“[T]he defendant must demonstrate the percentage of the

community made up of the group alleged to be underrepresented,

for this is the conceptual benchmark for the Sixth Amendment

fair-cross-section requirement.”). We are therefore left to

speculate as to whether 26% (20 African-Americans on the second

8
venire out of 78 persons) is a significantly low percentage of

African-Americans as compared to their percentage of the eligible

jurors in the Southern District.4 Consequently, we reject

Defendant’s contention that the venire for his second trial

violated due process.

B. Equal Protection

Defendant also challenges the selection of his venire on

equal protection grounds. “Although a defendant has no right to

demand that members of his race be included on the [venire], he

is entitled to require that the State not deliberately and

systemically deny to members of his race the right to participate

as jurors in the administration of justice.” Alexander v.

Louisiana, 405 U.S. 625, 629-30, 92 S.Ct. 1221, 1225 (1972)

(citations omitted). Ultimately, to establish a prima facie

equal protection violation a defendant must demonstrate

intentional discrimination in the selection of venires.

Alexander, 405 U.S. at 628-29. The necessary inference of

4
Even if we were to take judicial notice of the relevant
statistics, Defendant’s claim would nevertheless fail. Presumably,
the benchmark community would be those individuals in the Southern
District over the age of 18. See 28 U.S.C. § 1865(b)(1); Duren,
439 U.S. at 669 n.23 (accepting census data of individuals over the
age of 21). While not the most appropriate figure, we note that
African-Americans in the Southern District, according to 1997
Population estimates, constituted 31% of the population. The
disparity between 31% (in the community) and 26% (in the venire)
does not violate due process.

9
intentional discrimination, however, can arise from “[a]n

opportunity for discrimination in the operation of the jury

selection system, coupled with a lesser degree of

underrepresentation.”5 United States v. Fike, 82 F.3d 1315, 1321

(5th Cir. 1996) (citing Alexander v. Louisiana, 405 U.S. 625,

630, 92 S.Ct. 1221, 1225 (1972)); see Rideau v. Whitley, 237 F.3d

472, 484 (5th Cir. 2000).

The Supreme Court’s decision in Alexander v. Louisiana

illustrates the circumstances that constitute “an opportunity for

discrimination.” In Alexander, the jury commissioners hand-

picked venire-persons from selection forms that clearly displayed

the race of the prospective jurors. Id. at 630. Despite the

good faith affirmations of the selectors, the Court concluded

that the statistical underrepresentation of African-Americans

coupled with the clear opportunity to discriminate resulted in an

equal protection violation. See id. at 630 (“[W]e do not rest

our conclusion that petitioner has demonstrated a prima facie

case of invidious racial discrimination on statistical

improbability alone, for the selection procedures themselves were

not racially neutral. The racial designation on both the

questionnaire and the information card provided a clear and easy

opportunity for discrimination.”). The Court in Alexander

5
A lesser degree than that required in a fair cross section
claim. Fike, 82 F.3d at 1321.

10
analogized to two prior cases. In the first, the judge hand

picked jury selection cards; African-American candidates had

yellow cards while white candidates had white cards. Id. at 631

(citing Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891 (1953)).

Again, while there was no evidence of specific discrimination by

the judge, such evidence was unnecessary “given the fact that no

[African-Americans] had appeared on the final jury” and the

different colored note cards “‘[o]bviously ma[de] it easier for

those to discriminate who are of a mind to discriminate.’” Id.

(quoting Avery, 345 U.S. at 562). In the second case, the Court

reversed the conviction of a defendant tried before an all-white

jury that had been selected from a tax digest which separated

African-Americans and whites and placed a “(c)” next to the names

of the African-Americans. Id. Despite the lack of evidence of

specific discrimination, the Court held that the

disproportionately low number of African-American venire-persons

selected, in combination with the potential for abuse inherent in

the selection process established a prima facie case of

discrimination. Id.

In the present case, Defendant does not allege any such

opportunity for discrimination inherent in the selection

process.6 Rather, he simply argues that “because of the district

6
Indeed, it is unlikely that Defendant would be unable to
maintain such a claim. The Southern District of Mississippi has an
approved plan for random jury selection which is in compliance with

11
court’s action there was not only the opportunity for a

substantial degree of African American underrepresentation, there

was in fact African American underrepresentation.”7 Defendant’s

argument again turns the true inquiry on its head. Under Fike

and Alexander, the relevant “opportunity” is for discrimination

in the jury selection process, not an opportunity or chance for

underrepresentation to occur. See Fike, 82 F.3d at 1322 (“Equal

protection requires guards against arbitrary power in selecting

venires.”). The closest Defendant gets to arguing an opportunity

for discrimination is the implication that the percentage of

eligible jurors that are African-American is higher in the

Jackson Division than in the Southern District as a whole. His

argument follows that the district court’s discretion to expand

the jury venire to the district as a whole represents an

opportunity to discriminate. Even assuming we were to accept,

without evidence, that the percentage of eligible African-

American jurors was higher in the Jackson Division, Defendant’s

alleged opportunity for discrimination does not equate with the

examples of discrimination recognized in Alexander.

Absent the inference of discrimination under Alexander,

Defendant’s equal protection claim fails. Defendant has not

the 28 U.S.C. § 1863, et. seq.
7
Similar to his due process claim, Defendant does not support
his assertion of underrepresentation with any relevant evidence.

12
presented any other evidence indicating that the district court’s

decision was racially motivated. On the contrary, the district

court provided a reasonable explanation for its action – the

concern that the intense media coverage surrounding the first

trial may have affected the ability to draw an impartial jury

from the Jackson Division. Defendant has not offered any

evidence showing the district court’s reason was pretextual.

Thus, Defendant’s equal protection argument fails.

III. Batson Challenges

Defendant further argues that the alleged

underrepresentation of African-Americans in the venire was

exacerbated by the Government’s racially selective peremptory

strikes. “The use of peremptory challenges to strike venire-

persons based on their race violates the equal protection

component of the Due Process clause of the Fifth Amendment.”

United States v. Montgomery, 210 F.3d 446, 453 (5th Cir. 2000);

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). We

analyze whether a peremptory strike has been exercised in a

racially discriminatory manner in three steps:

First, the [opponent of the strike] must make a prima facie
showing that the [proponent] has exercised peremptory
challenges on the basis of race. Second, if the requisite
showing has been made, the burden shifts to the [proponent]
to articulate a race-neutral explanation for striking the
jurors in question. Finally, the trial court must determine
whether the [opponent] has carried his burden of proving
purposeful discrimination.

13
Hernandez, 500 U.S. at 358-59 (citations omitted).

Following the Government’s exercise of two peremptory

strikes against African-American venire-persons, Defendant’s

counsel raised his Batson claim. The district court then asked

the Government to provide a race-neutral justification for

striking the prospective jurors. Where, as here, the prosecutor

tenders a race-neutral explanation for his peremptory strikes,

the question of Defendant’s prima facie case is rendered moot and

our review is limited to the second and third steps of the Batson

analysis. See United States v. Broussard, 987 F.2d 215, 220 n. 4

(5th Cir.1993) (declining to decide whether defendant had

established prima facie case of racial discrimination, where

district court required explanation for peremptory strikes).

The second step in the Batson burden shifting analysis

requires that the Government provide a race-neutral reason for

the strike. Hernandez, 500 U.S. at 360. We analyze the

Government’s proffered racially neutral explanation as a legal

issue de novo. Hernandez v. New York, 500 U.S. 352, 364-65, 111

S.Ct. 1859 (1991); United States v. Bentley-Smith, 2 F.3d 1368

(5th Cir. 1993). “A neutral explanation in the context of our

analysis here means an explanation based on something other than

the race of the juror.” Hernandez, 500 U.S. at 360. At the

second stage, the explanation need not be persuasive, nor even

plausible, but only race-neutral and honest. Purkett v. Elem,

14
514 U.S. 765, 768, 115 S.Ct. 1769, 1771 (1995); United States v.

Webster, 162 F.3d 308, 349 (5th Cir. 1999). The Government’s

articulated reasons for the exercise of its strikes were that one

venire-person was witnessed smiling at Defendant, while the other

one lived in Defendant’s voting district or ward. Not being

based upon race, these reasons satisfy the Government’s minimal

burden at the second stage. Thus, our inquiry proceeds to the

third step and the ultimate question of whether intentional

discrimination motivated the Government’s peremptory strikes.8

We review the district court’s conclusion on whether the

peremptory strikes were racially motivated for clear error.

Hernandez, 500 U.S. at 364. In response to the Government’s

asserted reasons, Defendant argued that no one else witnessed the

alleged smile and that other members of the jury had also smiled

at Defendant. Defendant’s brief also points to the fact that the

second venire-person did not actually live in Defendant’s voting

district. Defendant concedes, however, that this fact was not

known at the time of jury selection and the Government maintains

that it believed the venire-person resided in Defendant’s

district.

8
Citing Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769,
1771 (1995), Defendant contends that because the district court
failed to afford Defendant the opportunity to demonstrate that the
Government’s race-neutral reasons were pretextual, reversal is
warranted. Defendant’s contention mischaracterizes the holding in
Purkett and is without merit.

15
 “In a typical peremptory challenge inquiry, the decisive

question will normally be whether a proffered race-neutral

explanation should be believed. There will seldom be any

evidence that the claimant can introduce – beyond arguing that

the explanations are not believable or pointing out that similar

claims can be made about non-excluded jurors who are not

minorities.” Bentley-Smith, 2 F.3d at 1374-75 (citation

omitted). Thus, in circumstances where the Government’s reason

is fantastic or inconsistent with its treatment of similar non-

minority jurors, we may have a basis for reversal. However,

where, as here, the Government’s reasons are plausible,

ultimately the inquiry boils down to whether the Government

should be believed. This is quintessentially a question of fact

which turns heavily on demeanor and other issues not discernable

from a cold record, such that deference to the trial court is

highly warranted. Id. at 373. In light of the district court’s

unique position to assess the Government’s credibility, we cannot

find clear error in the district court’s decision to believe the

Government’s proffered reasons.

Finally, we address Defendant’s argument that we should

consider the synergy between the expansion of the venire and the

Government’s peremptory strikes. Defendant argues that while

each alleged error may not be sufficient to warrant reversal, the

cumulative effect of the errors deprived him of a right to a fair

16
trial. We have previously recognized the so-called cumulative

error doctrine under which “an aggregation of non-reversible

errors (i.e., plain errors failing to necessitate reversal and

harmless errors) can yield a denial of the constitutional right

to a fair trial.” United States v. Munoz, 150 F.3d 401, 418 (5th

Cir. 1999); see United States v. Sepulveda, 15 F.3d 1161, 1195-96

(1st Cir.1993) (explaining the cumulative error doctrine). In

the present case, Defendant has not established any error in the

selection of his venire or jury. Accordingly, we reject all of

Defendant’s challenges to the selection of his venire and jury.

IV. Denial of Continuance to Obtain Transcript of Mistrial

Following the district court’s declaration of a mistrial in

Defendant’s first trial, the district court set the date for

retrial 17 days later. Prior to retrial, Defendant moved for a

continuance, citing the lack of a complete transcript of the

mistrial, scheduling conflicts, and other matters creating a

hardship on defense counsel. The district court denied the

motion for continuance. On appeal, Defendant alleges that the

district court’s failure to grant a continuance in order that he

could obtain a complete transcript denied him the opportunity to

obtain a fair trial. See United States v. Uptain, 531 F.2d 1281,

1291 (5th Cir. 1976) (reiterating that “a scheduled trial date

should never become such an overarching end that it results in

17
the erosion of the defendant’s right to a fair trial.”). We

construe Defendant’s argument as alleging a denial of procedural

due process.

In support of reversal, Defendant cites several cases in

which the Supreme Court and this Court have recognized the right

of an indigent defendant to obtain equal access to his trial

transcript. See Britt v. North Carolina, 404 U.S. 226 (1971);

Tague v. Puckett, 874 F.2d 1013 (5th Cir. 1989); United States v.

Pulido, 879 F.2d 1255 (5th Cir. 1989); United States v. Baker,

523 F.2d 741 (5th Cir. 1975). Defendant, in contrast, does not

allege that he was denied a transcript as a result of indigence.

The equal protection rationale of the cited cases is therefore

inapposite. While the cited cases principally relied on equal

protection, the Court has acknowledged that:

“[t]he precise rationale for [an indigent defendant’s right
to a transcript] has never been explicitly stated, some
support being derived from the Equal Protection Clause of
the Fourteenth Amendment, and some from the Due Process
Clause of that Amendment. Neither Clause by itself provides
an entirely satisfactory basis for the result reached, each
depending on a different inquiry which emphasizes different
factors. ‘Due process’ emphasizes fairness between the State
and the individual dealing with the State, regardless of how
other individuals in the same situation may be treated.
‘Equal protection,’ on the other hand, emphasizes disparity
in treatment by a State between classes of individuals whose
situations are arguably indistinguishable. We will address
these issues separately in the succeeding sections.

Ross v. Moffitt, 417 U.S. 600, 608-609 (1974) (Rehnquist, J.).

Thus, it appears as if the equal protection and due process

rationales are intertwined such that denying due process to

18
indigents is itself a denial of equal protection and denying

equal treatment to similarly situated defendants is itself a

denial of due process. See Griffin v. Illinois, 351 U.S. 12, 19

(1956); Ross, 417 U.S. at 609 n.8. To the extent, these cases

reflect a right grounded in procedural due process to a

transcript, the facts of Defendant’s case reveal that he was not

denied due process, i.e. a fair trial, by the district court’s

refusal to grant a continuance.

The parties agree that Defendant was given the transcripts

of Sandy McKnight and Robert Love. Defendant contends that he

did not receive the testimony of Agent Barnes, and did not

receive the testimony of Agent Karen Szszepanski until the third

day of trial. The Government, however, maintains that Agent

Szszepanski’s transcript was available in the clerk’s office and

it was due to Defendant’s lack of diligence that he did not

obtain the transcript of her testimony prior to trial. In any

respect, Defendant possessed the testimony of Agent Szszepanski

at least 24 hours prior to her testimony in the second trial.

Agent Szszepanski was responsible for analyzing the telephone

records of Defendant and other alleged co-conspirators in order

to develop a chart summarizing the calls. Agent Szszepanski had

no personal knowledge of Defendant’s actions. Defendant did not

have available to him at the second trial Agent Barnes’

transcript of testimony from the first trial. Agent Barnes posed

19
as the franchise director for Time Warner. His testimony related

to the van ride he took with car dealer Williams, Dixon, and

Jackson Police Officer Robert Love.

Absent his conclusory assertions to the contrary, Defendant

has not alleged how his inability to obtain a complete transcript

affected his right to a fair trial. Defendant does not allege

that the proceedings were particularly complex nor that any

testimony from the first trial was contradicted during the second

trial. Defendant was represented by the same counsel at both

trials. As our review of the sufficiency of the evidence below

reflects, the principal witnesses against Defendant were Sandy

McKnight and Robert Love (Robert Love also testified about the

van ride). The Defendant possessed prior to trial the

transcripts of both of these witnesses. Further, there was no

dispute at trial with respect to the facts and circumstances

related to the van ride. The Defendant did not complain that the

statements and actions attributed to Love and car dealer Williams

during the van ride were not made or false; rather, the Defendant

contended that car dealer Williams and Love were involved in an

extortion scheme but he was not a part of the scheme, pointing

out that testimony showed that he was not present during the van

ride. Under the circumstances presented here, we find no merit

in Defendant’s claim that his due process rights were violated.

20
 V. Evidentiary Challenges

Defendant presents several challenges to the evidence

admitted during his second trial. We review the district court’s

evidentiary rulings for abuse of discretion. United States v.

Ramirez, 174 F.3d 584, 589-90 (5th Cir. 1999).

A. Telephone Records

Through its expert, Agent Szczepenski, the Government

introduced a summary chart detailing telephone calls between

Defendant and other alleged co-conspirators. The exact nature of

Defendant’s challenge to this evidence is unclear. However,

Defendant appears to argue that the chart should not have been

admitted into evidence or, in the alternative, that the chart

presents insufficient evidence to support his conviction.

Initially, Defendant correctly cites United States v. Galvan for

the proposition that telephone records are insufficient evidence

to support a conspiracy conviction unless the government can show

who participated in the calls and the substance of their

conversation. 693 F.2d 417, 419 (5th Cir. 1982); United States

v. Powers, 168 F.3d 741, 746-47 (5th Cir. 1999).

Galvan, however, did not hold that telephone records are

inadmissible absent such a showing. 693 F.2d at 419-20. Thus,

even if we credit Defendant’s argument that the Government cannot

prove who made the calls or what their content was – the

21
Government disputes this contention – that does not render the

evidence of the calls inadmissible. All relevant evidence is

generally admissible; and to be relevant, evidence need only make

the existence of a material fact “more probable or less probable

than it would be without the evidence.” Fed. R. Evid. 401 and

402. Evidence that telephone calls were made between phones

owned by Defendant and other alleged conspirators, at times

consistent with the events alleged to be part of the conspiracy,

makes the existence of the conspiracy, and Defendant’s

participation in it, more likely.

Moreover, in the present case, unlike Galvan, the Government

did not rely exclusively on the telephone records to support its

conspiracy case. The addition of other relevant evidence

supporting Defendant’s conviction removes this case from the

limited holding in Galvan that telephone records are not,

standing alone, sufficient evidence to support a conspiracy

conviction unless the government can show who participated in the

calls and the substance of their conversation. Accordingly,

Defendant’s argument regarding the admissibility and sufficiency

of the phone records is without merit and rejected.

Finally, Defendant argues that the summary charts prepared

by Agent Szczepenski should not have been admitted without an

instruction that the charts were merely jury aids, not evidence.

Because Defendant did not raise this objection before the

22
district court we review it for plain error. Plain error is “1)

an error; 2) that is clear . . .; and 3) that affects the

defendant’s substantial rights.” United States v.

Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000); see United

States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 1775-79 (1993). A

summary chart that meets the requirements of Rule 1006 is itself

evidence and no instruction is needed. United States v. Smyth,

556 F.2d 1179, 1184 (5th Cir. 1977). Such charts are

distinguishable from pedagogical aids, which are merely to assist

the jury in understanding the evidence and should be accompanied

by an appropriate limiting instruction. United States v.

Stephens, 779 F.2d 232, 238 (5th Cir. 1985). In the present

case, the summary charts were entered into evidence pursuant to

Rule 1006 and thus no instruction was needed. Finding no error,

we reject Defendant’s claim that a jury instruction was

necessary.

B. Financial Condition

Relying on two Ninth Circuit cases, Defendant argues that

the Government’s evidence concerning his financial condition was

impermissibly offered to show “the mere fact that [he] is poor.”

United States v. Bensimon, 172 F.3d 1121, 1129 (9th Cir. 1999);

United States v. Jackson, 882 F.2d 1444, 1449 (9th Cir. 1989).

In the present case, the evidence admitted was testimony from a

23
Government witness that Defendant had recently lost his home in a

sale. Testimony regarding a specific change in Defendant’s

financial circumstances goes beyond showing “the mere fact that

he is poor.” Such testimony is relevant to Defendant’s motive

and therefore admissible under Rule 404(b). United States v.

Anderson, 933 F.2d 1261, 1274 (5th Cir. 1991). Further, the

district court did not abuse its discretion in concluding,

pursuant to Rule 403, that the probative value of the testimony

was not substantially outweighed by its prejudicial effect.

Thus, the district court did not err in admitting the statement

concerning Defendant’s financial condition.

C. Prior Consistent Testimony of Robert Love

Defendant correctly asserts, and the Government apparently

concedes, that the district court erroneously admitted the prior

testimony of Robert Love under Rule 801(d)(1)(B).9 On cross-

examination, Love was impeached with evidence that he negotiated

a deal with the Government to testify. To rehabilitate its

witness, the Government introduced Love’s testimony from the

first trial. The Government based its admission of the evidence

9
Rule 801(d)(1)(B) of the Federal Rules of Evidence provides
that a statement is not hearsay if (1) [t]he declarant testifies at
the trial or hearing and is subject to cross-examination concerning
the statement, and the statement is (B) consistent with his
testimony and is offered to rebut an express or implied charge
against him of recent fabrication or improper influence or motive.

24
on Rule 801(d)(1)(B). However, because the motive for Love to

lie arose prior to his testimony in the first trial, the

testimony was inadmissible under Rule 801(d)(1)(B). Tome v.

United States, 513 U.S. 150, 160 (1995); see United States v.

Powers, 168 F.3d 741, 750 (5th Cir. 1999) (holding that

“admitting statements under Rule 801(d)(1)(B) that were made

after the time the motivation to fabricate arose constitutes

error.”).

Defendant’s objection to the admission of the prior

consistent statement generically asserted that “Rule 801(d)(1)(B)

does not apply.” We find Defendant’s general objection was not

“specific enough to allow the trial court to take testimony,

receive argument, or otherwise explore the issue raised.” United

States v. Burton, 126 F.3d 666, 672-73 (5th Cir. 1997). In this

regard, we note that the temporal requirement imposed by Tome and

Powers is not found in the text of the rule.

Since Defendant did not adequately object, we review the

issue for plain error. Id. at 673. Plain error is “1) an error;

2) that is clear . . .; and 3) that affects the defendant’s

substantial rights.” United States v. Izaguirre-Losoya, 219 F.3d

at 437. Although introduction of the prior consistent statement

was an error; that was clear; such introduction did not affect

Defendant’s substantial rights. Robert Love’s testimony was not

a critical lynchpin holding together the Government’s case, and

25
the prior consistent testimony merely reiterated the testimony

Love had just given on direct examination. We therefore find no

reversible error.

D. James Hearing

Defendant asserts that the district court erred in failing

to conduct a James hearing and not providing a finding on the

record that supported the court’s admission of the alleged co-

conspirators’ statements into evidence under Rule 801(d)(2)(E).10

In United States v. James, this Court held that co-conspirators

statements are admissible under the hearsay exception in Rule

801(d)(2)(E), only if substantial independent evidence of a

conspiracy exists. 590 F.2d 575, 581 (5th Cir. 1991). We then

outlined permissible methods by which a district court may

determine whether the predicate elements exist to warrant

admitting the statements. A James hearing, conducted outside the

presence of the jury, is one potential method by which the

district court may ensure the Government can satisfy the

predicate facts needed to prove the conspiracy independent of the

statements. United States v. Fragaso, 978 F.2d 896, 900 (5th

Cir. 1992). Whether a James hearing is necessary in a particular

10
Defendant does not challenge the district court’s conclusion
that the requirements of Rule 801(d)(2)(E) were satisfied, only
that the district court did not follow proper procedure in reaching
its conclusion.

26
case in within the discretion of the trial court. Id. In the

instant case, Defendant was being retried before the same judge

on the same charges. In an analogous case, we found the district

court, which had presided over the trials of a defendant’s co-

conspirators, committed no error in refusing to conduct a James

hearing. United States v. Ricks, 639 F.2d 1305, 1310 (5th Cir.

1981). Similarly, having heard all the relevant testimony

previously, the district court in this case did not abuse its

discretion in finding that the requirements of Rule 801(d)(2)(E)

were satisfied without a James hearing.

VI. Sufficiency of the Evidence

Defendant’s final challenge is to the sufficiency of the

evidence supporting his conviction. In our review of the

evidence we must determine “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 2789 (1979); United States v. Pena, 949

F.2d 751, 755 (5th Cir. 1991). We have recognized that the jury

is “free to choose among all reasonable constructions of the

evidence,” United States v. Garcia, 86 F.3d 394, 398 (5th Cir.

1996), and “it is not necessary that the evidence exclude every

reasonable hypothesis of innocence or be wholly inconsistent with

27
every conclusion except that of guilt.” United States v. Lage,

183 F.3d 374, 382 (5th Cir. 1999). Our review is thus limited to

whether the jury’s verdict was reasonable, not whether we believe

it to be correct. Finally, “[t]his standard of review is the

same regardless of whether the evidence is direct or

circumstantial.” Lage, 183 F.3d at 382.

To prove the elements of conspiracy, “[t]he government must

prove beyond a reasonable doubt that a conspiracy existed, that

the defendant knew of the conspiracy, and that, with that

knowledge, he voluntarily became part of it. However, the

government need not establish its proof by direct evidence.

Proof of a conspiracy may be established by circumstantial

evidence and may be inferred from concert of action.” United

States v. Graves, 669 F.2d at 969 (citations omitted).

Defendant’s challenge to the sufficiency of the evidence focuses

on whether the Government proved beyond a reasonable doubt that

he had knowledge of the conspiracy. Defendant points to the fact

that no one that testified at his trial had direct knowledge of

his involvement in the conspiracy. He further argues that all of

the circumstantial evidence linking him to the conspiracy is as

consistent with innocence as it is with guilt.

The primary evidence implicating Defendant in the conspiracy

consisted of telephone records between Defendant and several

alleged co-conspirators; testimony and recordings of

28
conversations between McKnight, Love, and the alleged

conspirators; and the testimony of McKnight regarding his meeting

with Defendant at the car dealer’s office on December 13, 1997.

The Government’s theory at trial was that car dealer

Williams acted as a “bagman” for Defendant, ensuring that he

would be distanced from any discussions or transfer of the

bribery payment. Defendant argued that he was unaware of car

dealer Williams’ attempts to extort the $150,000 payment and that

he was only interested in ensuring greater minority participation

in Time Warner’s renewal proposal. However, when McKnight had

questions regarding the council’s vote, car dealer Williams

immediately called Defendant and arranged for a meeting to occur

that afternoon in his office.

In that December 13 meeting, Defendant stated that Time

Warner could be 100% sure of getting a favorable revote on their

cable franchise proposal if they agreed to “the car dealer’s

terms.” Previous testimony had established that the car dealer’s

terms were “$150,000.” Defendant contended, however, that he

believed the meeting at the car dealer Williams’ office was to

discuss greater minority participation, which he understood to be

“the car dealer’s terms.” The meeting was held on a Saturday in

car dealer Williams’ office at Blackwell Chevrolet. McKnight was

Time Warner’s representative in the contract discussion, he was a

maintenance engineer. McKnight testified that following the

meeting, car dealer Williams stated that Defendant was nervous

29
that McKnight was wired because McKnight never took his jacket

off during the meeting. Given these facts, it was not

unreasonable for the jury to infer that Defendant was referring

to the $150,000 payment when he alluded to “the car dealer’s

terms.”

Additional testimony came from Robert Love. Love testified

to his conversations with car dealer Williams, in which car

dealer Williams made numerous references to soliciting the vote

of Defendant. The jury also listened to the recorded telephone

conversation between McKnight and car dealer Williams and the

recorded conversation Agent Barnes had with the conspirators in

the van. These conversations confirmed that the votes of the

“Hershey bars” were conditioned on the payment of the $150,000.

The jury could reasonably infer that car dealer Williams was

talking about Defendant. The charts prepared by Agent

Szczepenski chronicling the numerous telephone calls between

telephones registered to Defendant and the other alleged co-

conspirators were additional evidence supporting the jury’s

verdict that Defendant had knowledge of the conspiracy. Many of

these telephone calls coincided with established events done in

furtherance of the conspiracy. Given this evidence, the

reasonable inferences therefrom, and the Government’s theory it

was reasonable for the jury to conclude beyond a reasonable doubt

that a conspiracy existed, that the defendant knew of the

conspiracy, and that, with that knowledge, he voluntarily became

30
part of it.11

For the foregoing reasons, we AFFIRM the judgment of the

District Court.

11
We also reject Defendant’s contention that the jury should
have been instructed on the “reasonable hypothesis” test. Our
precedent makes clear that “it is not necessary to so instruct the
jury when they are instructed properly on ‘reasonable doubt.’”
United States v. Alonzo, 681 F.2d 997, 1002 (5th Cir. 1982); United
States v. Cortez, 521 F.2d 1, 4 (5th Cir. 1975). Since a proper
reasonable doubt instruction was given by the district court in
this case, the reasonable hypothesis instruction was unnecessary.

31