UNITED STATES COURT OF APPEAL

FIFTH CIRCUIT

_______________

No. 93-8679

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARRELL A. TOMBLIN,

Defendant-Appellant.

__________________________________________________

Appeal from the United States District Court

for the Western District of Texas

__________________________________________________

(December 30, 1994)

Before REYNALDO G. GARZA, WIENER, and EMILIO M. GARZA, Circuit

Judges.

EMILIO M. GARZA, Circuit Judge:

Darrell A. Tomblin was convicted of bribery (Count 22),

conspiracy to commit bribery (Count 1), using interstate travel to

facilitate bribery (Counts 2, 4, 6-8, 10-21), aiding and abetting

bribery (Counts 5, 9), and extortion (Count 3). He appeals on

various grounds. We affirm in part and reverse in part.

I

Tomblin was the coordinating force for a group attempting to

develop business opportunities in Grenada and acquire controlling
2

interests in approximately ten failed or failing savings and loan

institutions ("S&Ls"). Tomblin believed that United States Senator

Jacob "Chic" Hecht of Nevada, whom he had known for several years,

would be helpful and interested in these projects due to his

position as a member of the Senate Banking and Intelligence

Committees.

Because Tomblin lacked the financial assets to forward these

plans, he involved two Texas bankers, Leo Ladoucer and Danny

Gonzalez, as potential financiers for the ventures. To secure

their cooperation in his plans, Tomblin promised Ladoucer and

Gonzalez that he would exercise his political influence with

Senator Hecht's office to gain assistance in bypassing the regular

channels involved in obtaining the approval of the Federal Home

Loan Bank Board ("FHLBB") for their takeover of Suburban Savings

Association ("Suburban").

Tomblin, Ladoucer, and Gonzalez attempted to accomplish their

goals, however, by promising Glen Mauldin, Senator Hecht's

administrative assistant and campaign treasurer, a $50,000 campaign

contribution, paying Mauldin's expenses for a trip to Texas, and

promising him a 10% stake in the Grenadan and S&L ventures.

Unbeknownst to Tomblin, Ladoucer and Gonzalez served as government

informants and made several recordings of conversations relating to

these events.

The involvements of the parties began when Tomblin contacted

Mauldin to determine what assistance the Senator's office could
 

1 Lachelli exercised his connections to obtain letters from U.S.

officials to the Prime Minister of Grenada and meetings with Grenadan officials

when the group eventually went there.

 

2 At trial, Mauldin testified that Tomblin said, "he was reserving ten

percent of the stock for someone they could work with, and then he indicated to

me at that time that it was `for you and Chic.'" Lachelli also testified that

ten percent had been set aside for Mauldin.

 

3 This waiver is commonly referred to as "forbearance."

 

4 The Senate Banking Committee, of which Hecht was a prominent member,

oversees the FHLBB.

3

provide for the Grenadan business ventures. Mauldin introduced

Tomblin to Vincent Lachelli, a Washington, D.C. lobbyist with

Grenadan connections,1 and at a subsequent meeting, Tomblin offered

Mauldin ten percent of the stock in the corporation being set up

for the Grenadan venture.2

Shortly thereafter, George Chall, who was acquainted with

Tomblin, introduced Ladoucer to Tomblin. Ladoucer and Gonzalez

were seeking investors to buy notes from Suburban in order to

improve Suburban's liquidity. Tomblin did not buy any notes;

instead, he suggested that Ladoucer and Gonzalez should obtain a

waiver from the FHLBB so that they could make more loans.3 Tomblin

offered to use his influence with Senator Hecht to facilitate a

meeting between Ladoucer, Gonzalez, and Danny Wall, chairman of the

FHLBB.4

Ladoucer and Gonzalez also desired access to Chairman Wall

because of the manner in which they had acquired a substantial
 

5 Ladoucer and Gonzalez had used fraudulent real estate transactions

to acquire the stock. As a result of these transactions, Ladoucer was indicted

for bank fraud, and eventually pled guilty to several charges; he also agreed to

cooperate with the government in its investigation of the conspiracy at issue in

this case. Gonzalez likewise was indicted, pled guilty to two counts of bank

fraud, and agreed to cooperate in the investigation of this case.

4

interest in Suburban.5 The Texas Savings and Loan Department had

notified Ladoucer and Gonzalez that they could not exercise the

control they had acquired until they received approval for the

change of control from the FHLBB. Because their acquisition of

Suburban stock had been illegal, their application for control

would not survive a regular review by the FHLBB. Absent approval

by the FHLBB, their one-million-dollar investment in Suburban was

substantially at risk. Consequently, Ladoucer and Gonzalez wanted

the meeting with Chairman Wall to see if they could bypass the

usual review.

Tomblin promised to help Ladoucer and Gonzalez get a meeting

with Chairman Wall, subject to several conditions. First, Ladoucer

and Gonzalez had either to pay Tomblin a $100,000 fee for his

assistance or make him a $250,000 loan. Tomblin also told Ladoucer

and Gonzales that they would have to pay Lachelli a $25,000

lobbying fee and contribute $50,000 to Hecht's campaign fund.

Tomblin had Mauldin fly to San Antonio to discuss the planned

meeting with Chairman Wall and the arrangements for the campaign

contribution. 

Ladoucer and Gonzalez complied with most of Tomblin's

requests. They paid Mauldin's expenses of $725.15 for the trip,

made the $250,000 loan to Tomblin through two Texas shell
 

6 According to Meyer, "it was a rare situation when you had one of

their assistants come over."

 

7 Mauldin eventually pled guilty to conspiracy to commit bribery. He

admitted that he had accepted the $725.15 as a bribe, and that he had agreed to

accept ten percent in the ventures in return for his assistance with Chairman

Wall and the FHLBB. Lachelli also pled guilty to conspiracy.

 

8 Section 371 of Title 18 makes it unlawful when "two or more persons

conspire either to commit any offense against the United States, or to defraud

the United States, . . . and one or more of such persons do any act to effect the

object of the conspiracy." 18 U.S.C. § 371 (1988).

 

9 Section 201 of Title 18 makes it unlawful to:

(b) (1) directly or indirectly, corruptly give[], offer[] or

promise[] anything of value to any public official or person who has

been selected to be a public official, or offer[] or promise[] any

public official or any person who has been selected to be a public

official to give anything of value to any other person or entity,

with intent))

(A) to influence any official act; or

5

corporations, and paid Lachelli the $25,000 lobbying fee. In

exchange, Tomblin arranged the meeting with Chairman Wall.

At the meeting with Chairman Wall and his assistant, Ray

Meyer, Gonzalez discussed the change of control and their hope that

the FHLBB would grant forbearance to Suburban. Mauldin also

attended the meeting; Meyer testified at trial that Mauldin's

attendance was unusual and an indication of Hecht's interest.6

None of the planned ventures ever came to fruition. The FHLBB

questioned the application for change of control, and Meyer's

cooperation was at best lukewarm. Ladoucer also never made the

$50,000 campaign contribution. Although the group continued to

pursue the Grenadan venture, indictments against the conspirators

short-circuited their plans.7

Tomblin was charged with twenty-two counts of conspiracy to

commit bribery,8 bribery,9 using interstate facilities to commit
(B) to influence such public official or person

who has been selected to be a public

official to commit or aid in committing, or

to collude in, or allow, any fraud, or make

opportunity for the commission of any

fraud, on the United States; or

(C) to induce such public official or such

person who has been selected to be a public

official to do or omit to do any act in

violation of the lawful duty of such

official or person, or

(2) . . . [if a public official or a person selected to be a

public official,] directly or indirectly, corruptly ask[], demand[],

exact[], solicit[], seek[], accept[], receive[], or agree[] to

receive anything of value for himself or for any other person or

entity, in return for:

(A) being influenced in his performance of any

official act; or

(B) being influenced to commit or aid in

committing, or to collude in, or allow, any

fraud, or make opportunity for the

commission of any fraud, on the United

States; or

(C) being induced to do or omit to do any act

in violation of the official duty of such

official or person.

(c)(1) otherwise than as provided by law for the proper discharge of

official duty))

(A) directly or indirectly give[], offer[], or

promise[] anything of value to a public

official, former public official, or person

selected to be a public official, for or

because of any official act performed or to

be performed by such public official,

former public official, or person selected

to be a public official; or

(B) being a public official, former public

official, or person selected to be a public

official, otherwise than as provided by law

for the proper discharge of official duty,

directly or indirectly demand[], seek[],

receive[], accept[], or agree[] to receive

or accept anything of value personally for

or because of any official act performed or

to be performed by such official or person.

18 U.S.C. § 201 (1988).

 

10 Section 1952 of Title 18 makes it unlawful to:

(a) travel[] in interstate or foreign commerce or use[] the

mail or any facility in interstate or foreign commerce,

with intent to))

. . . 

(3) otherwise promote, manage, establish, carry

on, or facilitate the promotion,

management, establishment, or carrying on,

of any unlawful activity,

6

bribery,10 aiding and abetting bribery,

11 and extortion.12 After a
and thereafter perform[] or attempt to perform[] any of the acts

specified in subparagraph . . . (3).

18 U.S.C. § 1952 (1988 & Supp. V 1993).

 

11 Section 2 of Title 18 makes it unlawful to "commit[] an offense

against the United States or aid[], abet[], counsel[], command[], induce[] or

procure[] its commission." 18 U.S.C. § 2 (1988).

 

12 Section 1951 of Title 18 makes it unlawful to:

(a) . . . in any way or degree obstruct[], delay[], or

affect[] commerce or the movement of any article or

commodity in commerce, by robbery or extortion or

attempt[] or conspire[] so to do, or commit[] or

threaten[] physical violence to any person or property

in furtherance of a plan or purpose to do anything in

violation of this section.

(b) As used in this section))

(2) The term "extortion" means the obtaining of

property from another, with his consent,

induced by wrongful use of actual or

threatened force, violence, or fear, or

under color of official right.

18 U.S.C. § 1951 (1988).

7

two-week trial that included thirty-five recordings of

conversations in which Tomblin had participated and testimony from

multiple witnesses including Tomblin himself, Tomblin was convicted

on all counts. The district court sentenced him to $5,000

restitution, fifty-one months' imprisonment, and three years of

supervised release. Tomblin appeals his convictions and sentence,

arguing that 1) the district court should have suppressed the

recordings; 2) the district court should not have refused his

requested jury instruction on intent to bribe and the evidence was

insufficient for the jury to find that he intended to bribe

Mauldin; 3) his extortion conviction should be reversed because he

was not a public official, the district court improperly refused

his requested jury instructions, and the evidence was insufficient

to convict him; 4) prosecutorial misconduct prejudiced him; and 5)
 

13 Tomblin makes this assertion, but provides no legal argument in his

brief that indicates the basis for his contention. Consequently, we do not

address it. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (holding

that issues not argued are abandoned).

8

the district court improperly enhanced his sentence based on

Mauldin's official position.

II

A

Tomblin argues that the district court should have suppressed

certain recorded conversations because 1) the FBI investigators

omitted material exculpatory information from the affidavit they

submitted to obtain wiretap authorization, 2) the government failed

to maintain proper custody of the tapes,13 and 3) the "consensual"

recordings were involuntary.

1

Tomblin first asserts that, because the FBI omitted

information, the affidavit submitted to obtain authorization to

monitor certain phone conversation was deficient. We review the

magistrate judge's decision for clear error. United States v.

Williams, 737 F.2d 594, 602 (7th Cir. 1984), cert. denied, 470 U.S.

1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985). Although we

presume "validity with respect to the affidavit supporting the

search warrant," Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.

Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978), "[d]eference to the

magistrate, . . . is not boundless. . . . [T]he deference accorded

to a magistrate's finding of probable cause does not preclude
9

inquiry into the knowing or reckless falsity of the affidavit on

which that determination was based." United States v. Leon, 468

U.S. 897, 914, 104 S. Ct. 3405, 3416, 82 L. Ed. 2d 677 (1984); see

also Williams, 737 F.2d at 602 (defining reckless disregard for

truth as when reasons to doubt information's veracity are obvious).

[T]he challenger's attack must be more than conclusory

and must be supported by more than a mere desire to

cross-examine. There must be allegations of deliberate

falsehood or of reckless disregard for the truth, and

those allegations must be accompanied by an offer of

proof. They should point out specifically the portion of

the warrant affidavit that is claimed to be false; and

they should be accompanied by a statement of supporting

reasons. Affidavits or sworn or otherwise reliable

statements or witnesses should be furnished, or their

absence satisfactorily explained. Allegations of

negligence or innocent mistake are insufficient.

Franks, 438 U.S. at 170, 98 S. Ct. at 2684. If the defendant

successfully makes this showing, and if the defect in the affidavit

is material, the evidence obtained pursuant to the faulty affidavit

is inadmissible. Id. at 155-56, 98 S. Ct. at 2676; see also United

States v. Stanert, 762 F.2d 775, 780 (9th Cir.) (discussing two

Franks elements: 1) that intentional or reckless falsity existed,

and 2) that absent invalid information, the remaining affidavit is

insufficient for probable cause).

Tomblin contends that the investigators omitted information

from their affidavits intentionally or with reckless disregard.

Omissions or misrepresentations can constitute improper government

behavior. Stanert, 762 F.2d at 781 (requiring "a substantial

showing that the affiant intentionally or recklessly omitted facts

required to prevent technically true statements in the affidavit
10

from being misleading"). Moreover, recklessness can in some

circumstances be inferred directly from the omission itself.

United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980)

(allowing an inference of recklessness from proof of the omission).

Unless those omissions are material, however, the affidavit stands.

United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)

("Omitted information that is potentially relevant but not

dispositive is not enough to warrant a Franks hearing."); Williams,

737 F.2d at 604 (omitted facts must be material). "Unless the

defendant makes a strong preliminary showing that the affiant

excluded critical information from the affidavit with the intent to

mislead the magistrate, the Fourth Amendment provides no basis for

a subsequent attack on the affidavit's integrity." Colkley, 899

F.2d at 303.

Tomblin makes several assertions that the FBI agents omitted

information from their affidavits, including: 1) that they did not

reveal a deal for leniency that the agents made with Ladoucer; 2)

that they did not reveal that Ladoucer was violating the law by

meeting with Chairman Wall; 3) that they did not explain that some

of the targets' admissions were made when the targets were

intoxicated; and 4) that they failed to reveal that the targets had

refused to act unlawfully on several occasions.

The government contends that the evidence contradicts

Tomblin's first two assertions. The record reflects that the

government did reveal that Ladoucer was expecting a deal in return
11

for his cooperation. The record also reveals that Gonzales

testified about the attendees of the meeting with Chairman Wall,

and that Ladoucer was not one of them. Therefore, Tomblin's first

two contentions lack merit.

Even if we infer recklessness from the omitted exculpatory

information as asserted in Tomblin's remaining contentions, Martin,

615 F.2d at 329, we also determine whether that information is

material, Colkley, 899 F.2d at 301; Williams, 737 F.2d at 604. The

targets may, as Tomblin argues, have refused to break the law as

alleged, and they may have been intoxicated as alleged. Neither

supports a finding of deliberate falsehood or reckless disregard

for truth because the balance of the information submitted in the

affidavits is more than sufficient on its own to establish probable

cause. Therefore, the absence of exculpatory circumstances for a

few of the conversations does not make the remaining information

misleading, and the district court's refusal to suppress the tapes

does not constitute clear error.

2

Tomblin also asserts that the "consensual" tape recordings

were not voluntarily made. "Voluntariness is a question to be

determined from the totality of the circumstances, . . . and we

will not disturb the trial court's determination on appeal unless

it is clearly erroneous." United States v. Smith, 649 F.2d 305,

209 (5th Cir. Unit B 1981) (citations omitted), cert. denied, 460

U.S. 1068, 103 S. Ct. 1521, 75 L. Ed. 2d 945 (1983). The
 

14 Tomblin cites only to outdated caselaw supporting his contention that

offering leniency vitiates consent. See, e.g., Weiss v. United States, 308 U.S.

321, 330, 60 S. Ct. 269, 272-73, 84 L. Ed 298 (1939) (holding that authorization

of intercepts could not be implied from "enforced agreement").

12

government has the burden of proving consent. United States v.

Kolodziej, 706 F.2d 590, 593 (5th Cir. 1983). It usually meets

this burden by demonstrating that "the informant placed the

telephone call knowing that it would be monitored." Kolodziej, 706

F.2d at 593. "When, however, there is an allegation of coercion,

the government must show that there has been no undue pressure,

threats, or improper inducements." Id.

Tomblin argues that Ladoucer and Gonzales agreed to the

recordings only because they hoped for improved treatment in the

prosecutions against them. A hope for leniency, however, does not

vitiate consent. United States v. Jones, 839 F.2d 1041, 1050 (5th

Cir.), cert. denied, 486 U.S. 1024, 108 S. Ct. 1999, 100 L. Ed. 2d

230 (1988); Kolodziej, 706 F.2d at 595; United States v. Llinas,

603 F.2d 506, 508 (5th Cir. 1979), cert. denied, 444 U.S. 1079, 100

S. Ct. 1030, 62 L. Ed. 2d 762 (1980); United States v. Juarez, 573

F.2d 267, 278 (5th Cir.), cert. denied, 439 U.S. 915, 99 S. Ct.

289, 58 L. Ed. 2d 262 (1978).14 Accordingly, Tomblin's challenge

fails.

B

Next, Tomblin raises several challenges to his convictions for

bribery. He contends that the district court erred in refusing to

give his requested jury instruction regarding intent. He also
 

15 Tomblin requested that the jury be instructed that:

. . . 

The solicitation and offer of campaign contributions and the

payment of expenses related to campaigns are necessary and

permissible forms of political activity and expression. Such

conduct is not only well within the law, but unavoidable so long as

election campaigns are financed by private contributions and

expenditures. Thus, the payment of a campaign contribution, the

promise of one, or the reimbursement of travel costs related to a

campaign do not, in and of themselves, constitute bribery.

In order for such to constitute bribery, you must find beyond

a reasonable doubt that Defendant TOMBLIN offered or solicited the

payment of the $725.00 to GLEN MAULDIN and the $50,000 to the Hecht

Re-Election Committee intentionally for an unlawful purpose

intending that its acceptance be conditioned upon GLEN MAULDIN

performing or not performing a defined, explicit official act.

This requires more than some generalized hope or expectation

of ultimate benefit. the money must have been offered and paid with

the intent and design to influence official action in exchange for

the donation))the payment serving as a condition for a specified and

bargained for action . . . .

Similarly, TOMBLIN contends that any offer or intent to offer

a percentage interest in business ventures was made out of loyalty,

friendship and the qualifications of MAULDIN and HECHT and not with

the intent to influence an official act as alleged . . . . The

offer, when coupled with such intent, if you find that he had such

intent or if you have a reasonable doubt that he so intended, is not

made corruptly and does not constitute bribery.

It must be remembered that TOMBLIN is not required to prove

his innocent motivation. Rather, the prosecution must prove beyond

a reasonable doubt that TOMBLIN did not act innocently . . . .

13

asserts that the evidence was insufficient to find that he intended

to bribe Mauldin.

1

Tomblin challenges the district court's refusal to grant his

requested jury instruction regarding his intent to bribe Mauldin.15

Specifically, he argues that the jury instruction actually given

did not require the jury to find an explicit quid pro quo, which is

a predicate to the specific intent required. We review jury

instructions for abuse of discretion. United States v. Pennington,

20 F.3d 593, 600 (5th Cir. 1994). "The refusal to give a jury

instruction constitutes error only if the instruction (1) was
14

substantially correct, (2) was not substantially covered in the

charge delivered to the jury, and (3) concerned an important issue

so that the failure to give it seriously impaired the defendant's

ability to present a given defense." Id.; United States v.

Aggarwal, 17 F.3d 737, 745 (5th Cir. 1994); United States v.

Shabazz, 993 F.2d 431, 440 (5th Cir. 1993).

Under the bribery statutes, the government must prove a quid

pro quo, that is, that the official took money in return for an

exercise of his official power. McCormick v. United States, 500

U.S. 257, ___, 111 S. Ct. 1807, 1815-16, 114 L. Ed. 2d 307 (1991).

In order to convict a briber, the government must prove that the

accused intended to bribe the official. Intending to make a

campaign contribution does not constitute bribery, even though many

contributors hope that the official will act favorably because of

their contributions. See United States v. Allen, 10 F.3d 405, 411

(7th Cir. 1993) ("[A]ccepting a campaign contribution does not

equal taking a bribe unless the payment is made in exchange for an

explicit promise to perform or not perform an official act. Vague

expectations of some future benefit should not be sufficient to

make a payment a bribe."); United States v. Biaggi, 909 F.2d 662,

695 (2d Cir. 1990) ("There is a line between money contributed

lawfully because of a candidate's positions on issues and money

contributed unlawfully as part of an arrangement to secure or

reward official action, though its location is not always clear."),

cert. denied, 499 U.S. 904, 111 S. Ct. 1102, 113 L. Ed. 2d 213
 

16 Although the fact that the court used a pattern instruction is not

conclusive, we encourage their use. United States v. Williams, 20 F.3d 125, 132

(5th Cir. 1994) ("[T]he Pattern Jury Instructions provide a useful guide for the

district courts, [but] we have never required the trial courts in this Circuit

to use any particular language in a jury charge."), cert. denied, 63 U.S.L.W.

3264 (U.S. Oct. 3, 1994) (No. 94-5238); United States v. Turner, 960 F.2d 461,

464 (5th Cir. 1992) (affirming refusal to give instruction where judge instructed

with Fifth Circuit Pattern Jury Instruction). 

15

(1991). Accordingly, a jury instruction must adequately

distinguish between the lawful intent associated with making a

campaign contribution and the unlawful intent associated with

bribery. See United States v. Taylor, 993 F.2d 382, 385 (4th Cir.)

("Any payment to a public official, whether it be a legitimate

campaign contribution or a bribe, is made because of the public

office he holds. Evans makes clear that the public official must

obtain `a payment to which he was not entitled, knowing that the

payment was made in return for official acts.'" (quoting Evans v.

United States, ___ U.S. ___, ___, 112 S. Ct. 1881, 1889, 119 L. Ed.

2d 57 (1992)) (emphasis added)), cert. denied, ___ U.S. ___, 114 S.

Ct. 249, 126 L. Ed. 2d 202 (1993). The instructions requested by

Tomblin adequately state the law. Therefore, the question is

whether the jury instruction given by the district court

"substantially covered" the distinction between the intent to make

a legitimate campaign contribution and the intent to bribe. See

Pennington, 20 F.3d at 600.

The district court instructed the jury on the issue of an

intent to bribe by using Fifth Circuit Pattern Jury Instruction16
 

17 The actual charge stated as follows:

Title 18, United States Code, Section 201(b)(1), makes it a

crime for anyone to bribe a public official. In this case, the

Defendant is charged with committing bribery in two different ways.

In counts five and nine, the Defendant is charged with aiding

and abetting Glen Mauldin in corruptly demanding, seeking, and

receiving something of value in order to be influenced in the

performance of official acts.

For you to find the Defendant guilty of bribery in counts five

and nine, you must be convinced beyond a reasonable doubt:

First: That Glen Mauldin demanded, sought, or received

something of value as described in the indictment.

Second: That Glen Mauldin was, at that time, a public

official of the United States or was acting on behalf of the United

States.

Third: That Glen Mauldin demanded, sought or received the

item of value corruptly in return for being influenced in the

performance of an official act; and

Fourth: That the Defendant aided and abetted Glen Mauldin in

doing so.

. . . 

In count twenty-two the Defendant is charged with bribing Glen

Mauldin and with aiding and abetting the bribery. For you to find

the Defendant guilty of bribery in count twenty-two, you must be

convinced that the Government has proved each of the following

beyond a reasonable doubt:

First: That the Defendant directly or indirectly gave,

offered, or promised something of value to Glen Mauldin; and

Second: That the Defendant did so corruptly with intent to

influence an official act by Glen Mauldin.

. . . 

An act is "corruptly" done if it is done intentionally with an

unlawful purpose. Therefore, in evaluating whether the Government

has proved beyond a reasonable doubt that the Defendant bribed or

intended to bribe a public official, you must focus specifically on

the Defendant's mental state, regardless of the mental state of the

public official. Merely because the public official accepts a thing

of value with corrupt intent does not mean that the Defendant made

the offer with corrupt intent. Indeed, the public official may

accept an offer as a bribe, while the Defendant may not possess the

same corrupt intent in offering something of value. Again, your

focus must be on the Defendant's state of mind.

16

Nos. 2.13 and 2.12.17 These instructions do distinguish between the

levels of intent about which Tomblin is concerned, because they

required the jury to find that Tomblin had acted corruptly, that

is, with unlawful purpose. Moreover, the instruction clearly

required the jury to focus on Tomblin's intent. Tomblin's

requested instruction focused pointedly on the specific facts of

this case as they related to his defense that he had not intended
 

18 See also Turner, 960 F.2d at 464 (denying defendant's requested

instruction because it was "more a statement of the case than an accurate

definition").

17

to bribe Mauldin, but the court's actual instruction allowed

Tomblin to present that information and defense to the jury, and we

do not require that the instructions do any more. See United

States v. Duvall, 846 F.2d 966, 972 (5th Cir. 1988) (affirming

instructions that "provided an adequate basis for [defendants] to

present to the jury a [specific theory of] defense"); United States

v. Dozier, 672 F.2d 531, 542 (5th Cir.) (approving instructions

that "fairly presented the issues to the jury"), cert. denied, 459

U.S. 943, 103 S. Ct. 256, 74 L. Ed. 2d 200 (1982).18 Consequently,

the district court did not abuse its discretion when it refused to

give the instruction Tomblin requested.

2

Assuming the instruction was proper, Tomblin also argues that

the evidence was insufficient for the jury to convict him of

bribery. See Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct.

2781, 2788-89, 61 L. Ed. 2d 560 (1979) ("[T]he critical inquiry on

review of sufficiency of the evidence to support a criminal

conviction must be not simply to determine whether the jury was

properly instructed, but to determine whether the record evidence

could reasonably support a finding of guilt beyond a reasonable

doubt."). To determine sufficiency in a criminal case:

The evidence is reviewed in the light most favorable to

the government, drawing all reasonable inferences in

support of the verdict. But if the evidence viewed in
 

19 See also United States v. Coyne, 4 F.3d 100, 114 (2d Cir. 1993)

("[T]he government does not have to prove an explicit promise to perform a

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

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

to exercise particular kinds of influence . . . as specific opportunities

arise."), cert. denied, ___ U.S. ___, 114 S. Ct. 929, 127 L. Ed. 2d 221 (1994);

United States v. Carpenter, 961 F.2d 824, 827 (9th Cir.) (refusing to require a

specific statement by official regarding intent, otherwise officials could

"escape liability . . . with winks and nods, even when the evidence as a whole

proves that there has been a meeting of the minds to exchange official action for

money"), cert. denied, ___ U.S. ___, 113 S. Ct. 332, 121 L. Ed. 2d 250 (1992).

18

the light most favorable to the prosecution gives equal

or nearly equal circumstantial support to a theory of

guilt and a theory of innocence, the conviction should be

reversed. It is not necessary that the evidence exclude

every reasonable hypothesis of innocence; the jury is

free to choose among reasonable construction of the

evidence. The only question is whether a rational jury

could have found each element of the offense beyond a

reasonable doubt.

United States v. Pennington, 20 F.3d 593, 597 (5th Cir. 1994)

(citations omitted); see also United States v. Stephens, 964 F.2d

424, 427 (5th Cir. 1992); United States v. Sanchez, 961 F.2d 1169,

1173 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 320, 121 L.

Ed. 2d 248 (1992). The government need not prove the occurrence of

the quid pro quo; proof of the agreement will suffice. Evans v.

United States, 504 U.S. ___, ___, 112 S. Ct. 1881, 1889, 119 L. Ed.

2d 57 (1992) ("[T]he Government need only show that a public

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

knowing that the payment was made in return for official acts.").19

Thus, we "consider both direct and circumstantial evidence,

including the context in which a conversation took place, to

determine if there was a meeting of the minds on a quid pro quo."

Carpenter, 961 F.2d at 827.

Tomblin argues that, at most, he had only a general
 

20 When Ladoucer said, "I guess I, uh, have a first class seat to take

care of tomorrow," and Mauldin replied that he did not fly first class, Tomblin

responded, "You should have." Regarding the fundraiser, Tomblin said, "I want

to gear it to the success," and "we're going to guarantee 50,000 here." Lastly,

Tomblin's statements about the stock he promised Mauldin included, "I told Glen

he got 10%;" "he gets 10% of our side;" "Glen's 10% is going to be split with

Chic. . . . But I never said that, and I'll call you a liar from the highest

tree." When asked where the money would eventually go, Tomblin answered,

"Straight to Chic." When Ladoucer asked how the group would get certain Navy

contracts, Tomblin responded, "That's what Chic's job is." Tomblin also made

statements about his own understanding that Mauldin would attend the meeting with

Chairman Wall to show Ladoucer's "stroke" with Senator Hecht. Lastly, in a

discussion over their Grenadan plans, Tomblin stated, "The reason Glen [Mauldin]

is going to stay involved is because then we can get some IMF money deposited."

 

21 Specifically, Tomblin testified that: "I wanted to reserve ten

percent of the stock to offer to someone in the future," and "it was still

something that was going to be discussed after they left office." In response

to a question about a link between the fundraiser and the meeting with Chairman

Wall, Tomblin replied, "Absolutely not."

19

expectation of future benefit, and that Mauldin and Lachelli were

so vague about the terms of the quid pro quo that the government

failed to establish its proof beyond a reasonable doubt. "[T]he

explicitness requirement is satisfied [, however,] so long as the

terms of the quid pro quo are clear and unambiguous." Id. Mauldin

testified that Tomblin offered him ten percent of the Grenada

venture, and that Tomblin encouraged Ladoucer to pay $725.15 for

Mauldin's trip to San Antonio, and that Tomblin was arranging for

a $50,000 contribution to Senator Hecht's campaign fund. Mauldin

also testified that he accepted or agreed to accept these sums as

bribes. Lachelli testified that Tomblin intended for ten percent

of the Grenada business to go to Mauldin. Lastly, the tapes reveal

that Tomblin himself admitted to these acts.20 Although Tomblin

testified at trial to an innocent motivation for each of these

actions,21 the evidence viewed in the light most favorable to the

verdict was nonetheless sufficient for the jury to find beyond a
 

22 Because we find the evidence sufficient to justify the jury's verdict

on the bribery counts, we do not address Tomblin's arguments that, because he

should not have been convicted of bribery, his aiding and abetting and conspiracy

convictions are invalid. See United States v. Curran, 20 F.3d 560, 571 (3d Cir.

1994) (requiring reversal of conspiracy conviction only if underlying illegality

reversed).

 

23 The court instructed the jury that it could find Tomblin guilty of

extortion "by wrongful use of actual or threatened fear of economic harm or under

color of official right" (emphasis added).

20

reasonable doubt that Tomblin intended to commit and aid and abet

in the commission of bribery.22

C

Tomblin also challenges his extortion conviction on several

grounds. He argues first that the evidence was insufficient to

support the jury's finding that the alleged extortion affected

interstate commerce. He also argues that, because he was not a

public official, he could not be convicted of extorting money under

color of official right. Next, Tomblin contends that the district

court improperly refused to give his requested instruction

regarding fear of economic harm. He further asserts that the

evidence was insufficient to convict him of extorting money through

fear of economic harm. Lastly, he argues that, even if the

evidence was sufficient on the fear of economic harm theory, the

insufficiency on the under color of official right theory requires

reversal because the instructions asked only for a general verdict

on the extortion count.23

1

Tomblin argues that the government failed to establish that

the alleged extortion affected interstate commerce. An effect on
21

interstate commerce is a required element of the offense of

extortion under the Hobbs Act. United States v. Stephens, 964 F.2d

424, 429 (5th Cir. 1992). Such an effect, however, need only be

slight. United States v. Coyne, 4 F.3d 100, 111 (2d Cir. 1993),

cert. denied, ___ U.S. ___, 114 S. Ct. 929, 127 L. Ed. 2d 221

(1994); see also Stephens, 964 F.2d at 429 ("The impact on

interstate commerce need not be substantial to meet the statutory

requirement; all that is required is that commerce be affected by

the extortion."); United States v. Haimowitz, 725 F.2d 1561, 1573

(11th Cir.) ("[A] showing of minimal effect on interstate commerce

will sustain jurisdiction under the statute."), cert. denied, 469

U.S. 1072, 105 S. Ct. 563, 83 L. Ed. 2d 504 (1984). The government

established that Suburban funds crossed state borders as a normal

part of its business. Indeed, the loan to Tomblin was for an outof-state restaurant. Payment from funds of a business engaged in

interstate commerce satisfies the requirement of an affect on

interstate commerce. Coyne, 4 F.3d at 111. Consequently, the

evidence was sufficient to support the jury's finding that the

alleged extortion affected interstate commerce.

2

Tomblin next contends that, because he was a private citizen,

he cannot be convicted of extortion under color of official right.

Usually, only public officials are charged with extorting property

under color of official right. See United States v. Snyder, 930

F.2d 1090, 1093 (5th Cir.) (discussing trial court's definition
 

24 See United States v. McClain, 934 F.2d 822, 830 (7th Cir. 1991)

(acknowledging that "under color of official right" can apply to private person

masquerading as official).

 

25 See United States v. Meyers, 529 F.2d 1033, 1036-37 (7th Cir.)

(affirming conspiracy conviction even though defendants were not officials yet),

cert. denied, 429 U.S. 894, 97 S. Ct. 253, 50 L. Ed. 2d 176 (1976).

22

that "extortion under color of official right means the wrongful

taking by a public officer of money or property not due to the

officer or the office"), cert. denied, ___ U.S. ___, 112 S. Ct.

380, 116 L. Ed. 2d 331 (1991). The official need not actually have

the powers he threatens to use, nor is the offense limited to

elected officials. See United States v. Freeman, 6 F.3d 586, 593

(9th Cir. 1993) ("[T]he Hobbs Act reaches anyone who actually

exercises official powers, regardless of whether those powers were

conferred by election, appointment, or some other method."), cert.

denied, ___ U.S. ___, 114 S. Ct. 1661, 128 L. Ed. 2d 378 (1994).

Moreover, the victim need not actually know the official's

position; it is enough that the victim reasonably believe the

official can do what he threatens. Stephens, 964 F.2d at 430

(holding that victim need not know extortioner's official position,

so long as victim believes extortioner has power to carry out

threats). Private persons have been convicted of extortion under

color of official right, but these cases have been limited to ones

in which a person masqueraded as a public official,24 was in the

process of becoming a public official,25 or aided and abetted a
 

26 See United States v. Margiotta, 688 F.2d 108, 131 (2d Cir. 1982)

(affirming private person's conviction for aiding and abetting public official's

extortion), cert. denied, 461 U.S. 913, 103 S. Ct. 1891, 77 L. Ed. 2d 282 (1983).

23

public official's receipt of money to which he was not entitled.26

All these cases involved a public official in some past, present,

or future capacity receiving money.

In contrast, the extortion for which Tomblin was

convicted))coercing the $250,000 loan from Ladoucer and

Gonzalez))did not result in the receipt of money by any public

official. Tomblin was not a public official, nor was he in the

process of becoming one. Moreover, although he may have "cloaked"

himself in the Senator's authority, as the government argues, no

one believed that he was a public official, especially not his

purported victims, Ladoucer and Gonzales. He was convicted of

threatening to use his political influence against Ladoucer and

Gonzales, but this power was not official power; it was unofficial

power over an official. 

Determining whether Tomblin's actions can constitute acting

under color of official right requires us to interpret the

statutory language of the Hobbs Act. The plain meaning of the

statute does not clearly indicate who can act under color of

official right, Freeman, 6 F.3d at 592 ("The Hobbs Act does not

define `under color of official right.'"), although the very use of

the word "official" suggests that an official must be involved in

some manner for an offense to occur. Consequently, we look to the

legislative history for further guidance. Although the legislative
 

27 See H.R. Rep. No. 1833, 73d Cong., 2d Sess. 1-2 (1934); S. Rep. No.

532, 73d Cong., 2d Sess. 1-2 (1934).

 

28 See S. Rep. No. 1516, 79th Cong., 2d Sess. 1 (1946); H. R. Rep. No.

238, 79th Cong., 1st Sess. 1-2 (1945).

 

29 91 Cong. Rec. 11908 ("The definitions of . . . extortion set out in

this bill . . . are defined in substantially the same way by the laws of every

state in the Union.") (statement of Rep. Robson); id. at 11914 ("Wherever

jurisprudence has had its sway robbery and extortion have been defined. There

is no use defining those terms because they are so well defined that their

definition now is a matter of common knowledge.") (statement of Rep. Russell).

 

30 See United States v. Nardello, 393 U.S. 286, 289, 89 S. Ct. 534, 536,

21 L. Ed. 2d 487 (1969) ("At common law a public official who under color of

office obtained the property of another not due either to the office or the

official was guilty of extortion."); United States v. Kenny, 462 F.2d 1205, 1229

(3d Cir. 1972) (defining common law extortion as "a crime which could only be

committed by a public official"); James Lindgren, The Elusive Distinction Between

Bribery and Extortion: From the Common Law to the Hobbs Act, 35 U.C.L.A. L. Rev.

815 (1988) (narrating the common-law history of extortion).

24

history of the original Anti-Racketeering Act did not discuss

"under color of official right,"27 that of the Hobbs Act28 provides

a glimmer of direction. It indicates that Congress preserved the

common law definition of extortion,29 under which extortion could

only be committed by a public official.30

In passing the Hobbs Act, Congress intended to make a

distinction between the "fear of harm" ground and the "under color

of official right" ground. United States v. McClain, 934 F.2d 822,

830 (7th Cir. 1991). This is understandable because the official's

position provides the coercive element that the threats and fear of

the other ground supply. Id. Accordingly, we agree with the

Seventh Circuit that in circumstances such as those in this case,

a private person cannot be convicted of extortion under color of

official right. See McClain, 934 F.2d at 831 ("[A]s a general

matter and with caveats as suggested here, proceeding against
 

31 Defendant's Requested Instructions #27-30 stated that:

Before TOMBLIN can be convicted of extortion, the government

must also prove that he obtained the property from Suburban Savings

and Loan Association by the wrongful use of fear of economic loss or

harm. The fear must be the loss of something to which Suburban was

legally entitled. If the loan was made because Suburban felt that

it stood to gain by making the loan, and not out of fear of economic

loss, that is not extortion. In other words, if Suburban had no

reason to fear an economic loss upon not making the loan, but

instead, stood only to improve its economic condition by making the

loan, TOMBLIN is not guilty of extortion.

Further, before you may convict TOMBLIN of extortion as

alleged in Count 3 of the Indictment, you must find beyond a

reasonable doubt that TOMBLIN knew the loan was being made because

Suburban Savings and Loan feared an economic loss. TOMBLIN claims

that he believed Suburban was making the loan because it was

sufficiently collateralized; because he believed he was financially

capable of obtaining the loan and that Suburban held a similar

belief; and that the loan was of mutual benefit for each party and,

therefore, properly negotiated . . . .

Before TOMBLIN can be found guilty of extortion as alleged in

count three of the indictment, you must find beyond a reasonable

doubt that he received the loan from Suburban Saving and Loan

Association knowing that he was not legally entitled to receive it

and further knowing that the loan was being made because Suburban

feared an economic loss.

TOMBLIN asserts that he believed the loan was sufficiently

collateralized, that it was made for value, i.e. a negotiated

interest rate, and that it was made for a proper business

purposes))the completion of his restaurant. Under such terms,

TOMBLIN claims he believed he was obtaining the loan properly. If

you find that TOMBLIN so believed, or you have a reasonable doubt as

to whether or not he so believed, you must acquit TOMBLIN . . . .

 

32 See supra Part II.B.1 for the proper standard of review for

challenges to jury instructions.

25

private citizens on an `official right' theory is inappropriate

under the literal and historical meaning of the Hobbs Act,

irrespective of the actual `control' that citizen purports to

maintain over governmental activity.").

3

Tomblin also challenges the district court's refusal to grant

his requested jury instruction regarding fear of economic harm.31

Specifically, he argues that the jury instruction actually given

did not require the jury to find a fear of actual harm.32 Extortion
 

33 See Haimowitz, 725 F.2d at 1572 (upholding extortion conviction where

license vital to economic health of business and official threatened to quit

helping if not paid).

 

34 See Capo, 817 F.2d at 954 (finding no extortion by fear of economic

harm where "all the evidence points to the conclusion that they paid voluntarily

to improve their chances to get jobs they had not been able to obtain on their

own").

26

by wrongful use of fear includes fear of economic harm. United

States v. Garcia, 907 F.2d 380, 381 (2d Cir. 1990); United States

v. Brecht, 540 F.2d 45, 52 (2d Cir. 1976), cert. denied, 429 U.S.

1123, 97 S. Ct. 1160, 51 L. Ed. 2d 573 (1977). Although the

defendant must at least know of the potential harm, we consider the

existence of fear from the perspective of the victim. Garcia, 907

F.2d at 385 ("[T]he government must at least prove the existence of

the victim's belief that the defendant had the power to harm it and

the victim's fear that the defendant would exploit that power.");

United States v. Capo, 817 F.2d 947, 951 (2d Cir. 1987)

(considering fear "from the perspective of the victim, not the

extortionist; the proof must establish that the victim reasonably

believed: first, that the defendant had the power to harm the

victim, and second, that the defendant would exploit that power to

their victim's detriment"). Moreover, the defendant need not

create the fear, so long as the defendant uses it to extort

property. United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.

1980), cert. denied, 450 U.S. 920, 101 S. Ct. 1369, 67 L. Ed. 2d

348 (1981). The fear, however, must be of a loss;33 fear of losing

a potential benefit does not suffice.34 Again, both the

instructions requested as well as those actually given correctly
 

35 The actual instruction read as follows:

Count three of the indictment charges the Defendant with

extortion.

Title 18, United States Code, Section 1951(a), makes it a

crime for anyone to obstruct commerce by extortion. Extortion means

the obtaining of or attempting to obtain property from another, with

that person's consent, when the consent is induced by wrongful use

of actual or threatened fear of economic harm [or] under color of

official right.

For you to find the Defendant guilty of this crime, you must

be convinced that the Government has proved each of the following

beyond a reasonable doubt:

First: That the Defendant obtained property from another with

that person's consent;

Second: That the Defendant did so by wrongful use of actual

or threatened fear of economic harm or under color of official

right; and

Third: That the Defendant's conduct interfered with and

affected interstate commerce.

. . . 

The term "fear" includes fear of economic loss or damage. It

is not necessary that the Government prove that the fear was a

consequence of a direct threat; it is sufficient for the Government

to show that the victim's fear was reasonable under the

circumstances.

The use of actual or threatened fear is "wrongful" if its

purpose is to cause the victim to give property to someone who has

no legitimate claim to the property.

27

address the law. Pennington, 20 F.3d at 600. Consequently, the

issue is whether the instruction given by the trial court

substantially covers the applicable law necessary for Tomblin to

argue his theory of defense. Id.

As with the bribery counts, the trial court instructed on

extortion in accordance with the Fifth Circuit Pattern Jury

Instructions 2.68 and 2.69.35 Tomblin argues that the instruction

given does not adequately distinguish between fear of an actual

loss and fear of deprivation of a future benefit. The instruction

as given fully allowed Tomblin to argue that Ladoucer and Gonzales

only feared that they would not receive the benefit of a meeting

with Chairman Wall, and that consequently, their fear was not of an
 

36 See also United States v. Duvall, 846 F.2d 966, 972 (5th Cir. 1988)

(affirming instructions that "provided an adequate basis for [defendants] to

present to the jury a [specific theory of] defense"); United States v. Dozier,

672 F.2d 531, 542 (5th Cir.) (approving instructions that "fairly presented the

issues to the jury"), cert. denied, 459 U.S. 943, 103 S. Ct. 256, 74 L. Ed. 2d

200 (1982).

 

37 See supra Part II.B.2 for the proper standard of review for

challenges to the sufficiency of the evidence.

28

actual loss. See United States v. Turner, 960 F.2d 461, 464 (5th

Cir. 1992) (denying defendant's requested instruction because "more

a statement of the case than an accurate definition").36 Therefore,

the instruction as given substantially covers the law and allowed

Tomblin to argue his theory of defense, and the district court did

not abuse its discretion in refusing to instruct as requested.

4

Assuming that the instruction was proper, Tomblin further

argues that the evidence was insufficient for the jury to convict

him of extortion by wrongful use of fear of economic harm.37

Tomblin argues that Ladoucer and Gonzalez only feared that they

would not receive a meeting with Chairman Wall, and that this fear

was insufficient to support an extortion conviction. See Garcia,

907 F.2d at 383 (reversing conviction where victim merely hoped for

improved chances on future contracts, because paying for beneficial

activity "is not the mindset of a victim of economic extortion");

Capo, 817 F.2d at 954 (reversing conviction where victims desired

better probability that they would secure employment). We

distinguish these cases, however, because although Ladoucer and

Gonzalez did fear they would not get their meeting, they primarily
 

38 Gonzalez testified that, "We'd have to let our money sit in Suburban

Savings," and "We would have lost $1,000,000."

 

39 Gonzalez stated: "[B]asically what he told me in a nutshell was, `If

you don't lend me the $250,000, then it's going to cost you $100,000 to see the

Senator and Danny Wall in Washington, D.C., and that's coming to me as a fee.'"

29

feared that they would lose their investment in Suburban.38

Moreover, it was Tomblin who first convinced Ladoucer and Gonzalez

to forgo other avenues and seek forbearance; they had already taken

action in reliance on his promise of help before he made his demand

for money. Accordingly, the evidence of that loss does qualify

under the statute. Gonzalez testified that Tomblin threatened not

to help them unless they either paid him a fee or gave him a loan.39

Consequently, the evidence sufficiently supported the jury's

finding that Tomblin had extorted money by wrongful use of fear of

economic harm beyond a reasonable doubt.

 5

Even though the evidence was sufficient to convict Tomblin of

extortion by wrongful use of fear of economic harm, he contends

that the insufficiency of the "under color of official right" prong

requires a reversal because both theories were submitted to the

jury on a single count. When only one of multiple theories

submitted to a jury is sufficient, whether this requires reversal

depends on the nature of the insufficiency. 

[W]hen disjunctive theories are submitted to the jury and

the jury renders a general verdict of guilty, appeals

based on evidentiary deficiencies must be treated

differently than those based on legal deficiencies. If

the challenge is evidentiary, as long as there was

sufficient evidence to support one of the theories
 

40 See United States v. Self, 2 F.3d 1071, 1093 (10th Cir. 1993)

(requiring reversal "if the jury could have based its verdict on a legally or

constitutionally infirm objective; however, factual insufficiency of one or more

objectives does not require reversal as we will presume that the jury rejected

the factually inadequate theory and convicted on an alternative ground for which

the evidence was sufficient").

 

41 Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 474, 116 L.

Ed. 2d 371 (1991) ("When, therefore, jurors have been left the option of relying

upon a legally inadequate theory, there is not reason to think that their own

intelligence and expertise will save them from error.").

30

presented, then the verdict should be affirmed. However,

if the challenge is legal and any of the theories was

legally insufficient, then the verdict must be reversed.

United States v. Garcia, 992 F.2d 409, 416 (2d Cir. 1993). The

reason for the varying treatment is that jurors can, from their own

experience, weed out evidentiary deficiencies,40 but not legal

insufficiencies.41

Legal insufficiency occurs when, even if the government proved

everything it possibly could prove, the defendant's conduct would

not constitute the crime charged. Self, 2 F.3d at 1093 (reversing

conviction where, for one theory, "both the government and the

district court were mistaken about the law . . . and, therefore,

Defendant's actions were not within the statutory definition of the

crime"). Because Tomblin was not a public official, conviction for

extortion could have been based on a legally insufficient ground.

Therefore, even if the evidence and instructions properly allowed

the jury to convict on a theory of fear of economic harm, we cannot

presume that the jury based its verdict on the legally sufficient

ground, and we must reverse Tomblin's extortion conviction.

D
31

Tomblin further contends that the district court should have

granted him a new trial on the grounds of prosecutorial misconduct.

He first argues that the prosecutor's cross-examination of one of

his witnesses went beyond the scope of direct examination. Next,

he asserts that the prosecutor improperly injected inadmissible

character evidence into his cross-examination of Tomblin. Lastly,

he contends that the prosecutor made improper, prejudicial comments

during closing arguments.

Because Tomblin did not preserve error by objecting to these

instances of alleged prosecutorial misconduct at trial, we review

these claims only for plain error. See Fed. R. Evid. 103

(requiring specific and timely objection to errors affecting

substantial rights, but allowing notice of "plain errors affecting

substantial rights although they were not brought to the attention

of the court"). "[A]n error must be clearly evident to be plain

. . . ." United States v. Calverley, 37 F.3d 160, 163 (5th Cir.

1994) (en banc); see also United States v. Olano, ___ U.S. ___,

___, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993) ("`Plain' is

synonymous with `clear' or, equivalently, `obvious.'"); Peretz v.

United States, 501 U.S. 928, ___, 111 S. Ct. 2661, 2678, 115 L. Ed.

2d 808 (1991) (Scalia, J., dissenting) (holding plain error to be

"errors that are obvious"); United States v. Young, 470 U.S. 1, 16

n.14, 105 S. Ct. 1038, 1047 n.14, 84 L. Ed. 2d 1 (1985) (equating

"plain" with "readily apparent"). Moreover, even if we find plain

error, it is within our discretion whether or not to reverse. See
32

Olano, ___ U.S. at ___, 113 S. Ct. at 1778 ("Rule 52(b) [defining

plain error] is permissive, not mandatory. . . . [T]he Court of

Appeals has authority to order correction, but is not required to

do so."); Calverley, 37 F.3d at 164 ("[A]n appellate court is

empowered, in its discretion, to correct the assigned error.").

1

Tomblin first argues that the prosecutor's cross-examination

of George Chall, Tomblin's witness, about Tomblin's connection to

bankrupt restaurants exceeded the scope of direct examination.

Rule 611(b) of the Federal Rules of Evidence requires that crossexamination "should be limited to the subject matter of the direct

examination and matters affecting the credibility of the witness."

Fed. R. Evid. 611(b). The subject matter of direct examination,

for the purpose of cross-examination, is "liberally construed to

include all inferences and implications arising from such

testimony." United States v. Arnott, 704 F.2d 322, 324 (6th Cir.),

cert. denied, 464 U.S. 948, 104 S. Ct. 364, 78 L. Ed. 2d 325

(1983). Rule 611 allows, but does not require, the district court

to permit cross-examination that exceeds the scope of direct

examination. United States v. Lowenberg, 853 F.2d 295 (5th Cir.

1988), cert. denied, 489 U.S. 1032, 109 S. Ct. 1170, 103 L. Ed. 2d

228 (1989).

Tomblin contends that his direct examination of Chall focused

on Chall's introduction of Ladoucer to Tomblin and Ladoucer and

Tomblin's subsequent business dealings. On direct examination,
 

42 Tomblin did object to the prosecution's cross-examination questions

to Chall concerning Tomblin's involvement in business enterprises in Las Vegas

and the trial court overruled the objection. However, Tomblin's objection must

fully apprise the trial court of the specific grounds of the objection. Waldrip,

981 F.2d at 804. "A loosely formulated and imprecise objection will not preserve

error." United States v. Jimenez Lopez, 873 F.2d 769, 773 (5th Cir. 1989).

Tomblin did not specifically object to the prosecutor's questions about Tomblin's

involvement with restaurants allegedly gone bankrupt. Further, Chall testified

that one of the alleged bankrupt restaurants was located in Las Vegas, and a

second was located in Austin, Texas. Tomblin's objection, therefore, did not

meet the specificity requirements of Rule 103. Fed. R. Evid. 103(a)(1).

 

43 On cross-examination, the prosecutor asked Chall whether Tomblin had

ever bragged to Chall about how much money Tomblin had made on the restaurant

bankruptcies.

Q: There was a restaurant in Las Vegas that went bankrupt, and a

restaurant in Austin that went bankrupt, correct?

A: Yes.

Q: Darrell Tomblin ever brag to you about how much money he made

on those ventures?

A: No, sir.

Q: Did he ever tell you about how much money he made in

33

Chall testified that Ladoucer informed him that he had mortgage

notes that he wanted to sell, and that he had heard that Tomblin

was involved with a mortgage company. Chall testified that he

arranged a meeting between Ladoucer and Tomblin so that they could

discuss the sale of mortgage notes. On cross-examination, the

prosecutor asked Chall if he knew that Tomblin had been involved

with bankrupt restaurants and Chall said that he did. Tomblin did

not object.42 The prosecutor directed the cross-examination

questions at what Chall knew about Tomblin's business dealings, and

we can fairly infer the questions' basis from the direct

examination. Consequently, we find no error on this point.

Tomblin also argues that, because Chall did not testify about

Tomblin's character, the prosecutor's questions to Chall about

Tomblin's character on cross-examination were outside the scope of

direct examination.43 If so, then Chall's testimony about Tomblin's
bankruptcies on those?

A: No, sir.

Because the prosecutor's questions insinuated that Tomblin was guilty of some

wrong, misconduct, or crime in relation to the restaurant bankruptcies, the

questions also commented on Tomblin's character. See United States v. Park, 525

F.2d 1279, 1284-85 (5th Cir. 1976) (criticizing insinuating questions that imply

wrongdoing).

 

44 Rule 404(b) states that:

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan

knowledge, identity, or absence of mistake or accident, provided

that upon request by the accused, the prosecution in a criminal case

shall provide reasonable notice in advance of trial, or during trial

if the court excuses pretrial notice on good cause shown, of the

general nature of any such evidence it intends to introduce at

trial.

Fed. R. Evid. 404(b).

 

45 582 F.2d 898 (5th Cir. 1978), cert. denied, 440 U.S. 920, 99 S. Ct.

1244, 59 L. Ed. 2d 472 (1979).

 

46 Rule 403 provides that: "Although relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of cumulative evidence."

Fed. R. Evid. 403.

34

character constitutes impermissible character evidence under

Federal Rule of Evidence 404(b).44 The two-prong test outlined in

United States v. Beechum45 applies to the admissibility of evidence

under Rule 404(b). First, the evidence must be relevant to an

issue other than the defendant's character, and second, the

evidence must comply with Rule 403 in that its probative value must

not be substantially outweighed by undue prejudice. 582 F.2d at

911.46

A review of the record reveals nothing in Tomblin's direct

examination of Chall that provided grounds for the prosecutor to
 

47 Because we conclude that Chall did not testify about Tomblin's

character, we do not reach Tomblin's alternative argument that even if Chall

testified about Tomblin's character, the prosecutor's cross-examination about

Tomblin's alleged misconduct was not made in good faith, as required by Federal

Rule of Evidence 608(b).

 

48 The prosecutor apparently based these questions on an FBI

investigation of Tomblin's bankruptcies.

35

cross-examine Chall on Tomblin's character.47 Further, the

prosecutor's questions to Chall did not relate to Tomblin's

business dealings, but to Tomblin's alleged bragging about

profiting from his businesses' bankruptcies.48 Thus, the questions

did not relate to any issue other than Tomblin's character and fail

the threshold inquiry under Rule 404(b). See Huddleston v. United

States, 485 U.S. 681, 685, 108 S. Ct. 1496, 1499, 99 L. Ed. 2d 771

(1988) (requiring court to examine first whether character evidence

under Rule 404(b) is probative of material issues other than

character). Moreover, it is unlikely that Chall's negative

responses to the prosecutor's questions controverted the

insinuation of misconduct. See United States v. Davenport, 753

F.2d 1460, 1463 (9th Cir. 1985) ("The prejudice to the defendant

was, thus, created by the question itself rather than by the

testimony given in response."). Thus, the probative value of the

prosecutor's cross-examination of Chall regarding Tomblin's

character was substantially outweighed by its prejudicial affect

and, therefore, it fails the second prong of the Beechum test.

However, a review of the entire record and the evidence against

Tomblin convinces us that the introduction of the character

testimony does not require reversal, because the jury would have
 

49 We note that, had we addressed Tomblin's Rule 608(b) good faith

argument, we would have reached the same conclusion.

 

50 Rule 404(b) requires the prosecution in a criminal case to provide

notice in advance of trial of its intent to use other acts evidence. Fed. R.

Evid. 404(b) advisory committee notes (stating that the purpose of the notice

requirement is to reduce surprise and promote early resolution of admissibility

issues).

 

51 Rule 608(b) states that: "Specific instances of the conduct of a

witness, for the purpose of attacking or supporting the witness' credibility

. . . may, however, in the discretion of the court, if probative of truthfulness

or untruthfulness, be inquired into on cross-examination of the witness (1)

concerning the witness' character for truthfulness or untruthfulness . . . ."

Fed. R. Evid. 608(b). Unlike Rule 404(b), however, Rule 608(b) does not require

advance notice of the prosecutor's intent to use specific instances of

defendant's conduct to impeach the defendant when he testifies. United States

v. Baskes, 649 F.2d 471, 477 (7th Cir. 1980) ("No rule or rationale guarantees

the defense advance knowledge of legitimate impeachment before it calls a

witness."), cert. denied, 450 U.S. 1000, 101 S. Ct. 1706, 68 L. Ed. 2d 201

(1981).

36

returned a verdict of guilty against Tomblin even without the

prejudicial testimony. United States v. Hasting, 461 U.S. 499,

510-11, 103 S. Ct. 1974, 1981, 76 L. Ed. 2d 96 (1983) (noting that

"there can be no such thing as an error-free, perfect trial

. . ." and denying reversal because the error was harmless beyond

a reasonable doubt).49

2

Tomblin also argues that, because the prosecutor did not

provide advance notice, the introduction of evidence of other bad

acts when cross-examining Tomblin violated Federal Rule of Evidence

404(b).50 The government contends that the other-acts evidence was

proper under Rule 608(b) because it was introduced only to impeach

Tomblin and was not offered in the prosecutor's case in chief.51

Whether Rule 404(b) or Rule 608(b) applies to the admissibility of

other-act evidence depends on the purpose for which the prosecutor
37

introduced the other-acts evidence. United States v. Schwab, 886

F.2d 509, 511 (2d Cir. 1989), cert. denied, 493 U.S. 1080, 110 S.

Ct. 1136, 107 L. Ed. 2d 1041 (1990). Rule 404(b) applies when

other-acts evidence is offered as relevant to an issue in the case,

such as identity or intent. Id. Rule 608(b) applies when otheracts evidence is offered to impeach a witness, "to show the

character of the witness for untruthfulness," or to show bias. Id.

The prosecutor contends that his cross-examination questions were

probative of Tomblin's character for truthfulness.

 A defendant makes his character an issue when he testifies.

Waldrip, 981 F.2d at 803; United States v. Blake, 941 F.2d 334, 340

(5th Cir. 1991), cert. denied, ___ U.S. ___, 113 S. Ct. 596, 121 L.

Ed. 2d 533 (1992). The government is entitled to cross-examine

properly and effectively a witness in an effort to elicit the

truth. United States v. Havens, 446 U.S. 620, 626-27, 100 S. Ct.

1912, 1916, 64 L. Ed. 2d 559 (1980). However, "a prosecutor may

not use impeachment as a guise for submitting to the jury

substantive evidence that is otherwise unavailable." United States

v. Silverstein, 737 F.2d 864, 868 (10th Cir. 1984). Rather, "Rule

608 authorizes inquiry only into instances of misconduct that are

`clearly probative of truthfulness or untruthfulness,' such as

perjury, fraud, swindling, forgery, bribery, and embezzlement."

United States v. Leake, 642 F.2d 715, 718 (4th Cir. 1981) (citing

Fed. R. Evid. 608); see also United States v. Waldrip, 981 F.2d

799, 803 (5th Cir. 1993) (applying Leake standard to forgery
 

52 Rule 608(b) does require a good-faith basis for the questions.

Tomblin, however, did not raise lack of good faith in a contemporaneous

objection. Further, the record shows that the prosecutor gathered his foundation

from the wiretaps.

 

53 In a pretrial hearing, Tomblin stated that if the prosecutor intended

to introduce Rule 404(b) evidence, Tomblin would seek to limit its use through

his motion in limine. The prosecutor responded that he did not intend to

introduce Rule 404(b) evidence, but he reserved the right to introduce evidence

of other misconduct to impeach Tomblin should Tomblin testify. It is not clear

that the judge gave a ruling on this part of the motion. Because we find the

evidence permissible under Rule 608(b), we do not address Tomblin's argument that

the evidence violated his 404(b) motion.

38

evidence).

When Tomblin testified, the prosecutor questioned him on

cross-examination about alleged acts of misconduct. Tomblin

complains of the prosecutor's cross-examination questions about an

alleged F.E.C. investigation of Tomblin's involvement in a

political candidate's campaign, Tomblin's alleged hiring of a

lawyer to pay-off foreign officials, and an investigation of

Tomblin by the F.B.I. for alleged bankruptcy fraud. Tomblin also

complains of the prosecutor's cross-examination about whether

Tomblin had skimmed $110,000 from his bankrupt restaurant in

Austin, Texas, put the money in a shoe box, and fled from Texas to

Florida. The prosecutor's cross-examination questions were

directed at Tomblin's alleged acts of fraud, bribery, and

embezzlement.52 As such, the prosecutor's questions were probative

of Tomblin's character for truthfulness and were permissible under

Rule 608(b). Accordingly, we conclude that the provision of Rule

404(b) that requires the prosecutor to give notice of his intention

to use other-acts evidence does not apply here.53
 

54 See also United States v. Carter, 953 F.2d 1449, 1457 (5th Cir.)

("This Court's task in reviewing a claim of prosecutorial misconduct is to decide

whether the misconduct casts such serious doubt upon the correctness of the

jury's verdict."), cert. denied, ___ U.S. ___, 112 S. Ct. 2980, 119 L. Ed. 2d 598

(1992); Lowenberg, 853 F.2d at 301 (questioning "not [merely] the impropriety of

the prosecutor's remarks but whether these remarks were so inflammatory that they

entitle the defendant to a new trial").

39

3

Tomblin next argues that the prosecutor made improper remarks

during his closing argument which constitute plain error and

require reversal. When the prosecutor's remarks during closing

argument are both inappropriate and harmful, a defendant may be

entitled to a new trial. United States v. Simpson, 901 F.2d 1223,

1227 (5th Cir. 1990), cert. denied, ___ U.S. ___, 114 S. Ct. 486,

126 L. Ed. 2d 436 (1993). The prosecutor's improper remarks

standing alone, however, are insufficient to overturn a criminal

conviction. United States v. Young, 470 U.S. 1, 11, 105 S. Ct.

1038, 1044, 84 L. Ed. 2d 1 (1985). Rather, the defendant must show

that the prosecutor's remarks affected his substantial rights.

Simpson, 901 F.2d at 1227.54 "To determine whether the argument

affected the defendant's substantial rights, we examine (1) the

magnitude of the statement's prejudice, (2) the effect of any

cautionary instructions given, and (3) the strength of the evidence

of the defendant's guilt." Simpson, 901 F.2d at 1227; Lowenberg,

853 F.2d at 302. 

Tomblin first contends that the prosecutor's comments on

Tomblin's cross-examination testimony were improper because the

prosecutor did not "force" Tomblin to respond to the questions and
 

55 "Finally, ladies and gentlemen, if you have any

lingering doubt about Darrell Tomblin's corrupt intent,

think back, please, to the time when Mr. Bennett was

asking him about skimming the $110,000 from the bar

receipts from the bar in Austin and taking those

receipts to Sarasota with him in a shoe box and then

asking Robert Dejong to lie to the F.B.I. for him.

Darrell Tomblin didn't deny it and he didn't admit it.

What he did was say, 'Do you have any tapes? Do you

have any tapes?' When it comes to the crimes charged

here))here, we have tapes."

40

therefore did not have "evidence" from Tomblin. During closing

arguments, however, the prosecutor may give a fair appraisal of the

defendant's testimony. See Simpson, 901 F.2d at 1227 (permitting

prosecutor to paraphrase and summarize testimony); Beechum, 582

F.2d at 898 (permitting prosecutor to appraise defendant's

testimony). The prosecutor referred in his closing argument to

Tomblin's failure to admit or deny on cross-examination whether he

removed money from his bankrupt Austin restaurant and Tomblin's

response that instead asked the prosecutor whether he had any

tapes.55 Since Tomblin had placed his credibility at issue when he

testified, it was not impermissible for the prosecutor to give a

fair appraisal of Tomblin's testimony that implicated his

credibility. Consequently, the prosecutor's appraisal of Tomblin's

cross-examination testimony was proper.

Tomblin also contends that the prosecutor implied that

Tomblin's own attorney believed he was guilty of the crimes

charged. Statements in closing argument that presuppose a

defendant's guilt can be the sort of "foul blows" long held

improper. United States v. Goff, 847 F.2d 149, 164 (5th Cir.),

cert. denied, 488 U.S. 932, 109 S. Ct. 324, 102 L. Ed. 2d 341
 

56 The prosecutor commented:

[I]t was quite clear [defense counsel] and Mr. Tomblin did not want

to try the case. They did not want to appear before you. . . . This

is a case that is truly overwhelming in the strength of its

evidence. Knowing what all the evidence would be, I don't blame

them for not wanting the try the case. Instead, they tried to shift

who was on trial here. . . . They tried to try a different case. He

strove mightily to try someone else. He wanted to put Glen Mauldin

on trial; he wanted to put Leo Ladoucer on trial; he wanted to put

Vince Lachelli on trial; Glen Mauldin))everyone, everyone was to be

on trial except him.

 

57 The prosecutor stated to the jury in his rebuttal closing argument

that they would have to disregard the testimony of the prosecution's witnesses

in order to believe Tomblin's testimony, and that doing so would require that

they believe that the government had conspired to "craft" its case. 

41

(1988). In the prosecutor's rebuttal closing argument, he stated

that Tomblin's attorney did not want to try the case because the

evidence was overwhelming; instead, Tomblin's attorney attempted to

put other persons on trial.56 Taken in context, the prosecutor did

not imply that Tomblin's attorney himself believed that Tomblin was

guilty. Rather, the prosecutor fairly commented on the weight of

the evidence and Tomblin's trial strategy. Accordingly, the

prosecutor's comments were neither improper nor harmful.

Tomblin lastly contends that the prosecutor bolstered his case

and the testimony of his witnesses by investing them with the

integrity of the state.57 The possible prejudice of a prosecutor's

"reverse conspiracy" argument is that the jury could reasonably

infer that it must "abandon confidence in the integrity of the

government" before it could acquit the defendant. Goff, 847 F.2d

at 164. Additionally, such argument could bolster its witnesses in

the eyes of the jury by stamping them with the integrity of the

sovereign. United States v. Dorr, 636 F.2d 117, 119-20 (5th Cir.
42

Unit A 1981). The prosecutor's remark in this case is similar to

the one condemned as prejudicial in Goff. Consequently, we examine

the effect of any cautionary instructions given by the trial judge

and the strength of the evidence suggesting guilt to see if they

attenuate the prejudice of the prosecutor's statement. Simpson,

853 F.2d at 1227; see also Goff, 847 F.2d at 165 (evaluating

"whether the jury would have found appellants guilty had it not

been for the prosecutor's improper argument," and considering the

degree of prejudice, the effectiveness of curative instructions,

and the weight of the evidence supporting guilt).

The trial court instructed the jury prior to opening

statements that the opening and closing arguments of both the

prosecutor and the defendant did not constitute either evidence or

instructions on the law. We presume that the jury follows the

instructions of the trial court unless there is an "overwhelming

probability that the jury will be unable to follow the instruction

and there is a strong probability that the effect is devastating."

United States v. Barksdale-Contreras, 972 F.2d 111, 116 (5th Cir.

1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1060, 122 L. Ed. 2d

366 (1993). Tomblin presents no convincing argument that the jury

did not follow the instruction given by the trial court. Also,

there was substantial evidence of Tomblin's guilt, including

witness testimony and the taped conversations. Therefore we

conclude that the trial court's instructions and the weight of the

evidence against Tomblin dissipated the potential prejudice of the
 

58 See Lowenberg, 853 F.2d at 302 (approving similar cautionary

instruction regarding the function of the attorneys' opening and closing

arguments); cf. Carter, 953 F.2d at 1457 (approving district court's curative

instruction that prosecutor's questions do not constitute evidence).

 

59 See Blake, 941 F.2d at 341 (finding harmless error when remaining

evidence "more than sufficient to establish that any reasonable juror would have

to conclude that [the defendant] was not credible").

43

prosecutor's statements,58 and the error does not require reversal.59

E

Tomblin lastly argues that the district court erred when it

found that Mauldin occupied a sensitive government position and, as

a consequence, applied an eight-level upward departure. "In the

appellate review of sentences, we examine factual findings subject

to the `clearly erroneous' standard . . . , and we afford great

deference to the trial judge's application of the sentencing

guidelines." United States v. Humphrey, 7 F.3d 1186, 1189 (5th

Cir. 1993).

Under the Sentencing Guidelines, "[i]f the offense involved a

payment for the purpose of influencing . . . any official holding

a high-level decision-making or sensitive position, [the base

offense level] increase[s] by 8 levels." United States Sentencing

Commission, Guidelines Manual, § 2C1.1(b)(2)(B) (1993). That a

position requires the exercise of some discretion alone does not

mandate finding that the possessor of that discretion occupies a

sensitive government position. See, e.g., United States v.

Stephenson, 895 F.2d 867, 877-78 (2d Cir. 1990) (affirming denial

of sensitive position finding where employee's discretion was minor

and lower-level). When the discretion includes some final
44

decision-making authority or involves substantial responsibility

for funds, however, the position can qualify under the Guidelines.

United States v. Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994)

(affirming finding of sensitive position for Department of Navy

employee who exercised considerable discretion in contract awards

and supervised other employees); United States v. Lazarre, 14 F.3d

580, 582 (11th Cir. 1994) (affirming finding of sensitive position

for INS employee who held discretion over parole decisions

regarding Haitian detainees).

Tomblin contends that, as a mere aide, Mauldin did not possess

the level of discretion or responsibility necessary to warrant the

application of the upward departure. We disagree. A senator's top

administrative aide holds a position of substantial influence,

because he often serves as the senator's functional equivalent.

See Gravel v. United States, 408 U.S. 606, 616-17, 92 S. Ct. 2614,

2623, 33 L. Ed. 2d 583 (1972) ("[I]t is literally impossible

. . . for Members of Congress to perform their legislative tasks

without the help of aides and assistants; . . . the day-to-day work

of such aides is so critical to the Members' performance that they

must be treated as the latter's alter egos . . . ."). Moreover,

Meyer testified that Mauldin's presence at a meeting signified

Hecht's direct interest in the outcome. Consequently, the district

court did not err in granting an eight-level upward departure in

sentencing Tomblin.

III
 

60 Because Tomblin received the same sentence on all counts to run

concurrently, our vacating his extortion conviction and sentence does not impact

his sentence on the remaining counts.

45

For the foregoing reasons, we VACATE Tomblin's conviction for

extortion (Count 3), VACATE his sentence on the extortion count,

REMAND for new trial on that count only, and we AFFIRM Tomblin's

convictions on all remaining counts.60