UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-30251

(Summary Calendar)

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UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOANN A PARKER; RALPH PARKER,

Defendants - Appellants.

Appeals from the United States District Court

for the Eastern District of Louisiana

January 15, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Joann A. Par ker (“Mrs. Parker”) appeals her conviction and

sentence for conspiracy to commit public bribery and five counts of

public bribery in violation of 18 U.S.C. §§ 201(b)(2)(C) and 371.

Ralph Parker (“Mr. Parker”) appeals his conviction for conspiracy

to commit public bribery and three counts of public bribery under

the same statutes. We affirm.

I

The Social Security Administration (“SSA”) Office of Hearings

and Appeals employed Mrs. Parker as a clerk to Administrative Law1 SSI benefits are means-based benefits for needy elderly, blind, and

disabl ed persons. An applicant for SSI first fills out an application for

benefits at a local SSA office. If the initial application is denied, then the

applicant may reapply. After the application has been denied twice, an applicant

may appeal to the SSA Office of Hearing and Appeals, where an ALJ will review the

file and, if necessary, order a hearing. The ALJ will iss ue a written opinion

granting or denying SSI benefits, a copy of which is mailed in a letter to the

applicant. The ALJ also may determine that the disability began at some prior

point in time and order a lump-sum back payment.

-2- Judge (“ALJ”) John Aronson. She led a group that helped certain

individuals to fraudulently obtain Supplemental Security Income

(“SSI”) benefits in return for money. 1 The scheme began when Mrs.

Parker met Niknitta Simmons (“Simmons”) at a hearing where Simmons

was appealing the denial of SSI benefits for her son, Kevin

Simmons. ALJ Aronson advised Simmons that additional documentation

would be necessary for a favorable ruling on Kevin’s claim. Mrs.

Parker approached Simmons after the hearing and offer ed to help.

A few days later, Mrs. Parker gave Simmons a letter approving

Kevin’s benefits. Mrs. Parker thereafter called Simmons and

demanded money for her help. Simmons refused to pay, and Kevin’s

benefits were terminated. Mrs. Parker advised Simmons that Kevin’s

benefits would be reinstated if Simmons paid her.

Simmons went to several SSA offices and reported Mrs. Parker’s

demands. Investigators from the SSA and FBI contacted Simmons, and

she agreed to assist them by permitting FBI Agent Karen Jenkins to

record her telephone conversations with Mrs. Parker. In m ultiple

re corded conversations, Mrs. Parker demanded payment for having

Kevin’s benefits approved initially and for having those benefits

reinstated. At a meeting at Simmons’ home, Mrs. and Mr. Parker

t ook $500, as captured on videotape by the FBI. Mrs. Parker-3-

thereafter demanded more money, which Simmons paid, and Mrs. Parker

gave Simmons a letter purportedly bearing ALJ Aronson’s signature

reinstating Kevin’s benefits.

Agent Jenkins and a SSA agent interviewed Mrs. P arker about

her contacts with Simmons. The agents advised Mrs. Parker of her

rights and she signed a written waiver before confessing to

fraudulently approving benefits for Kevin Simmons, Raymond Henry,

Georgette Lemon, Yvette Scott, and Karen Johnson. Mrs. Parker

stated that two other SSA employees had assisted her and implicated

Mr. Parker. Mrs. Parker admitted that she had approved benefits by

taking letters addressed to different persons, changing the names

and dates of those letters to match those of the applicants who had

paid her money, and forging the signature of ALJ Aronson.

II

A

Mrs. Parker first argues that the indictment charging her with

conspiracy to commit public bribery and public bribery under 18

U.S.C. § 201( b)(2)(C) was deficient because she lacked the

authority to grant or deny benefits. Mrs. Parker’s duties included

assisting ALJ Aronson before and during the hearings, recording and

taking notes at those h earings, and typing and mailing ALJ

Aronson’s decisions. Mrs. Parker had access to the office’s

computer system, but was not authorized to approve benefits or sign

ALJ Aronson’s name. Thus, Mrs. Parker essentially argues that the

only acts which we should examine in determining whether she

violated section 201(b)(2)(C) are those within the scope of her2 18 U.S.C. § 201 provides in relevant part:

(b) Whoever ))

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

public official, directly or indirectly, corruptly

demands, seeks, receives, accepts, or agrees to receive

or accept anything of value personally or for any other

person or entity, in return for:

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

violation of the official duty of such

official or person.

. . . shal l be fined under this title or not more than three times the

monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fi fteen years, or both, and may be

disqualifi ed from holding any office of honor, trust, or profit

under the United States.

Id.

-4- authority, such as typing and mailing opinions.

Section 201(b)(2)(C) prohibits public officials from being

induced to do or omit any act in violation of their official duty. 2

Acts that violate an official’s duty are extremely broad in scope.

Section 201(a) broadly defines an “official act” as “any decision

or action on any question, matter, cause, suit, proceeding or

controversy, which may at any time be pending, or which may by law

be brought before any public official, in such official’s official

capacit y, or in such official’s place of trust or profit.” 18

U.S.C. § 201(a)(3). This broad definition of “official act”

reflects Congress’ intent to “include any decision or action taken

by a public official in his capacity as such.” S.Rep. No. 87-2213,

(1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3856. Official acts

that violate an official’s official duty are not limited to those

proscribed by statutes and written rules and regulations, but may

also be found in “established usage,” because “duties not-5-

completely de fined by written rules are established by settled

practice, and action taken in the course of their performance must

be rega rded as within the provisions of the above-mentioned

statutes against bribery.” United States v. Birdsall

, 233 U.S. 223,

231, 34 S. Ct. 512, 514, 58 L.Ed.2d 930 (1914). Official acts that

violate an official’s official duty are also not limited to those

within the official’s specific authority. See e.g., United States

v. Gjieli , 717 F.2d 968, 972 (6th Cir. 1983).

Mrs. Parker does not dispute that the individuals for whom she

fraudulently approved benefits had appeals pending in her office.

Because the appeals were pending in her “place of trust or profit,”

her actions fall within the statutory definition of “official act.”

See United States v. Dobson

, 609 F. 2d 840, 842 (5th Cir. 1980)

(holding that the actions of a government employee in preparing a

memorandum fell within the definition of an “official act” because

the decision in question was pending in his “place of trust or

profit”). Her abuse of the SSA facilities and equipment and the

responsibility that ALJ Aronson gave her enabled her to alter and

forge the decisions. Mrs. Parker could create fictitious letters

approving benefits because she had access to the official networked

computer system. She was able to “cut and paste” segments of one

docum ent onto another and make them appear real. As access to

government computer systems becomes more prevalent, opportunities

for this kind of nefarious behavior will become more common. We

therefore hold that the term “official act” encompasses use of

governmental computer systems to fraudulently create documents for-6-

the benefit of the employee or a third party for compensation, even

when the employee’s scope of authority does not formally encompass

the act. S ee e.g., United States v. Carson

, 464 F.2d 424, 433 (2nd

Cir. 1972) (interpreting the bribery statute broadl y to cover a

congressi onal aide’s attempts to intercede with Executive Branch

officials on behalf of bribers even though the scope of his job

authority did not extend to such intercession). Mrs. Parker’s

actions were thus covered by section 201(b)(2)(C) and the

indictment was not deficient.

B

Mr. and Mrs. Parker argue that the district court erred in

barri ng cross-examination of the witness Yvette Scott on pending

state charges that Scott murdered her husband. At trial, they both

argued that the charge was relevant to show Scott’s general lack of

credibility. The court barred mention of the pending state charges

because it held that “[t]hreatening to kill her husband or killing

her husband has nothing to d o with the facts of this case.” On

appeal, Mrs. Parker argues that cross-examination should have been

allowed to show Scott’s lack of credibility. Mr. Parker argues for

the first tim e on appeal that such cross-examination would have

shown tha t Scott had an incentive to slant her testimony in this

case in favor of the government t o receive a favorable

recommendation in the pending state case.

As the lower court correctly noted, F ED . R. E VID . 609 permits

impeachment by evidence of past convictions, but does not apply to

crimes charged for which there has been no conviction. S ee United-7-

States v. Abadie

, 879 F.2d 1260, 1267 (5th Cir. 1989) (holding that

an arrest is generally not admissible to impeach the general

credibility of a witness). Prior bad acts that have not resulted

in a conviction are admissible under F ED

. R. E VID

. 608(b) if

relevant to the witness’s character for tru thfulness or

untruthfulness. Violent crimes, however, are irrelevant to a

witness’s character for truthfulness. See C HARLES A LAN W RIGHT & V ICTOR

J AMES G OLD

, F EDERAL P RACTICE AND P ROCEDURE § 6118 (1993). Accordingly, the

district court did not abuse its discreti on denying crossexamination to show S cott’s general lack of credibility, and we

reject Mrs. Parker’s argument.

With regard to Mr. Parker’s argument that cross-examination on

the pending state charges would have demo nstrated possible bias,

even assumi ng the applicability of Rule 608(b), reversal would

still not be required. Mr. Parker has presented no evidence that

federal prosecutors agreed to give a favorable recommendation for

or intercede on behalf of Simmons in the pending state case. See

United States v. Benavidez

, 664 F.2d 1255, 1262 (5th Cir. 1982)

(holding trial court’s refusal to allow impeachment of a witness’s

credibility o n pending state charges did not violate the

Confrontation Clause because no evidence existed of a ny deal

between the government and witness to testify favorabl y).

Moreover, any error that may have occurred was harmless. S ee

Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436,

89 L.Ed.2d 674 (1986). Scott’s testimony was substantially

c orroborated by the testimony of Georgette Lemon and other-8-

government witnesses. Thus, even if the trial court erred in not

allowing cross-examination on the pending state charges to

demonstrate possible bias, such error was harmless, and we reject

Mr. Parker’s argument as well.

C

Mrs. Parker n ext argues that the district court erred in

excusing venire member 47, who stated that he would have a “healthy

skepticism for evidence brought into court” and that he would be

suspicious of the government’s evidence before he saw it. She also

avers that the judge’s questioning of venire member 47 was so loud

that the entire venire could hear the questioning, and that this

questioning cowed the jury into believing that they were required

to accept the government’s evidence as correct.

In noncapital cases, removal of a venire member generally is

not grounds for reversal unless “the jurors who actually sat were

not impartial within the meaning of the Sixth Amendment.” United

States v. Gonzalez-Balderas

, 11 F.3d 1218, 1222 (5th Cir. 1994). A

potential juror is properly excused for cause when the individual’s

views would pre vent or substantially impair the performance of

their duties as a juror. S ee United States v. Flores , 63 F.3d

1342, 1354 (5th Cir. 1995). In addition to stating that he had a

“healthy skepticism” for evidence, venire member 47 stated that he

would be suspicious of the evidence before he had seen it based on

his brother-in-law’s recent criminal conviction. Therefore, the

court did not abuse its discretion in dismissing venire member 47.

Mrs. Parker has presented no evidence that the jurors who-9-

actually sat were not impartial. Indeed, even after the judge’s

exchange with venire member 47, other venire members approached the

bench to inquire about possible disqualifications. Their exchanges

wit h the judge do not reflect any sense of intimidation by the

judge’s exchange with venire member 47. The judge also instructed

the jury that the y should decide the case only on the evidence

presented in court and according to the court’s instructions. In

the absence of evidence to the contrary, we find that the jury was

impartial, and that Mrs. Parker’s rights were not prejudiced. See

United States v. Prati , 861 F.2d 82, 87 (5th Cir. 1988).

D

Mr. Parker argues that the district court abused its

discretion on two evidentiary rul ings. We review evidentiary

rulings only for abuse of discretion. See United States v. Torres

,

114 F.3d 520, 526 (5th Cir. 1997). In the first ruling, FBI Agent

Jenkins testified that “As soon as I arrived [at Simmons’ house],

I learned that Mrs. Parker had just called Simmons and demanded

money.” The trial court allowed the statement to be introduced

only for the limited purpose of establishing background information

on why Agent Jenkins began the investigation, a use which we have

repeatedly approved in the past. S ee e.g., United States v.

Carillo

, 20 F.3d 617, 619 (5th Cir. 1994) (allowing testimony of

detective concerning background information that led detectives to

purchase drugs from defendant). The court also gave two limiting

instructions to the jury explaining that the statement was not3 Even assuming that the prejudicial effect of this statement

substantially outweighed its probative value, see F ED

. R. E VID

. 403, and that the

district court erred in admitting it, such error was harmless because Simmons

herself repeated this information in her testimony and the government played

recorded tapes of those conversations to the jury. S ee United States v. Gomez

, 529 F.2d 412, 417 (5th Cir. 1976) (holding admission of hearsay statement to be

harmless error because contents of statement were duplicated by other evidence).

-10- admitted for the truth of the matter asserted. 3 Thus, the district

court did not abuse its discretion in admitting this statement.

In the second ruling, Peggy Kelly testified about a telephone

conversation she had with a man who referred to Mrs. Parker as his

“old lady” and who threatened Kelly. Kelly stated that she thought

that the man on the telephone was Mr. Parker and her reasons for so

thinking, but admitted that she could not identify his voice and

that she had never previously met him. Mr. Parker argues that the

government therefore failed to properly establish the evidentiary

foundation for the telephone conversation. “While a mere assertion

of identity by a person talking on the telephone is not in itself

sufficient to authenticate that person’s identity, some additional

evidence, which ‘need not fall in[to] any set pattern,’ may provide

the necessary foundation.” United States v. Khan

, 53 F.3d 507, 516

(2nd Cir. 1995) (quoting F ED

. R. E VID

. 901(b)(6), Advisory Committee

notes, example 6).

Here, the trial court found sufficient circumstantial evidence

to indicate that the man on t he telephone was Mr. Parker because

Mrs. Parker placed the call to Kelly, and, thereafter, a man

interrupted the telephone conversation and stated that Mrs. Parker

was his “old lady.” Based on this circumstantial evidence, we

affirm the district court’s finding that the government established-11-

a foundation for the conversation. Once the government established

this foundation, it became the province of the jury to decide

whether Mr. Parker was indeed the man on the phone and whether he

made the threats; as the conversation was relevant to this

determination, it was properly admissible under F E D

. R. E VID

. 401.

Accordingly, we reject Mr. Parker’s argument.

E

Mrs. Parker argues that the evidence was insufficient to

support her conviction. Because she failed to move for a judgment

of acquittal at the close of the evidence, we review only for plain

error. S ee United States v. McCarty

, 36 F.3d 1349, 1358 (5th Cir.

1994). A conviction may be reversed under the plain error standard

only to avoid a manifest miscarriag e of justice. I d

. “Such a

miscarriage would exist only if the record is devoid of evidence

pointing to guilt, or . . . because the evidence on a key element

of the offense was so tenuous that a conviction would be shocking.”

United States v. Pierre , 958 F.2d 1304, 1310 (5th Cir. 1992) (en

banc). After a thorough review of the record, we find that the

record is not so devoid of evidence pointing to guilt or so tenuous

on a key elem ent of the offense that her conviction would be

shocking and, accordingly, we decline to reverse her conviction.

F

Finally, Mrs. Parker alleges various errors in her sentencing

and the court’s adoption of the Presentence Report (“PSR”). We

review the trial court’s legal interpretation and application of

sentencing guidelines de novo and its factual findings in-12-

connection with sentencing for clear error. See United St ates v.

Ismoila

, 100 F.3d 380, 394 (5 th Cir. 1996). Facts contained in a

PSR are considered reliable and may be adopted without further

inquiry if the defendant fails to present competent rebuttal

evidence. S ee United States v. Puig-Infante

, 19 F.3d 929, 943 (5th

Cir. 1994). Such rebuttal evidence must demonstrate that the PSR

information is “materially untrue, inaccurate or unreliable,” see

United States v. Angulo

, 927 F.2d 202, 205 (5th Cir. 1991). Mere

objections do not suffice as competent rebuttal evidence. S ee

Puig-Infante , 19 F.3d at 943.

Mrs. Parker first argues that the court erred in considering

the confession she made to Agent Jenkins in deciding her sentence.

We reject this argument because the state ment was admissible and

was introduced at trial. See United States v. Collins

, 40 F.3d 95,

98 (5th Cir. 1994). Moreover, at sentencing, “a court may consider

relevant information without regard to its admissibility under the

rules of evidence applicable at trial, provided t hat the

information has sufficient in dicia of reliability to support its

probable accuracy.” U.S.S.G. § 6A1.3 (Nov. 1995).

Mrs. Parker next alleges that the district court erred in

crediting the part of the PSR that stated that Mrs . Parker took

$8,000 from Peggy Kelly’s sister in the bathroom of a Wendy’s

restaurant for obtaining benefits. We reject her argument because

she failed to present any rebutta l evidence to support her

argument. Moreover, the jury convicted Mrs. Parker on one count of

taking money from Peggy Kelly’s sister and the refore, the court-13-

only adopted what the jury had previously determined.

Mrs. Parker alleges that the victim impact portion of the PSR

i s deficient because it overstates the victim impact. She argues

that the only victims in this case were the individuals from whom

she took money and only their payments to her should be considered

in affixing the amount of the loss. The PSR identified the SSA as

the victim, stated that the total fr audulent claims amounted to

$69,673.85, and broke down the claims by each individual, which the

district court as being both accurate and reliable. Loss

calculations will be affirmed so long as they reasonably estimate

the loss using reasonably available information

. S ee U.S.S.G.

§ 2F1.1, cmt. 8; United States v. Chappell

, 6 F.3d 1095, 1101 (5th

Cir. 1993). Mrs. Parker failed to present any rebuttal evidence

and while the individuals from whom Mrs. Parker extorted money may

have been victims, the SSA was also a victim because it paid monies

due to Mrs. Parker’s actions that it otherwise might not have paid.

Cf. United States v. Sidhu

, No. 96-50736, 1997 WL 745724, at *8-9

(5th Cir. Dec. 3, 1997) (holding that for doctor’s fraud, the

victim impact should include not just amounts collected from

patients, but amounts collected from insurance companies as well).

Therefore, we reject Mrs. Parker’s argument.

Mrs. Parker also argues that the district cou rt erred in

increasing her offense level under U.S.S.G. § 2B3.2 based on its

finding that her offense involved threats of physical injury and4 Violation of § 201(b)(2)(C) is normally puni shable under U.S.S.G.

§ 2C1.1, but if the offense involved a threat of physical injury or destruction,

U.S.S.G. § 2B3.2 is instead applied.

-14- property destruction. 4 A conspirator may be held liable for the

substantive offenses of a coconspirator when the acts are

reasonably foreseeable and are done in furtherance of the

conspiracy, even where the first conspirator lacked knowledge of or

participation in the acts. S ee Pinkerton v. United States

, 328

U.S. 640, 647-48 (1946). The trial court found that the threats

were made by Mr. Parker, but that the threats were attributable to

Mrs. Parker because they were coconspirators and his actions were

reasonably foreseeable by her. Absent competent rebuttal evidence,

the court properly adopted these facts. U.S.S.G. § 1B1.3(a)(1)(B).

Mrs. Parker argues that the district court erred in increasing

her offense level pursuant to § 3B1.1(c) of the Guidelines for her

leadership role. We review this sentence enhancement only for

clear error, see United States v. Narvaez , 38 F.3d 162, 166 (5th

Cir. 1994), and no clear error results if the finding is plausible

in light of the record read as a whole. S ee United States v.

Watson

, 966 F.2d 161, 162 (5th Cir. 1992). The record of this case

and testimony by government witnesses at trial fully supports the

d istrict court’s finding that Mrs. Parker exercised a leadership

role in altering SSA documents. See U.S.S.G. § 3B1.1, cmt. 4.

Finally, Mrs. Parker argues that the court erred in failing to

consider her medical condition and her financial circumstances in

imposing her sentence and ordering her to pay restitution, citing

U.S.S.G. § 5H1.4 and § 5E1.2. We reject this contention because-15-

the district court considered her medical condition and financial

circumstances before imposing the sentence and it explicitly

declined to reduce her sentence. S ee United States v. Winters

, 105

F.3d 200, 208 (5th Cir. 1997); United States v. Guajardo

, 950 F.2d

203, 208 (5th Cir. 1991).

III

The convictions of Joann Parker and Ralph Parker are AFFIRMED

and the sentence of Joann Parker is AFFIRMED.