United States v. Moeller

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

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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

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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

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(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.

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