1 The Honorable James M. Moody, United St ates District Judge for the Eastern District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-1741

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Jack Foster, *
* Appellant. *

___________ Submitted: November 18, 2005 Filed: April 11, 2006

___________ Before ARNOLD, BEAM, and RILEY, Circuit Judges.

___________ RILEY, Circuit Judge.
A jury convicted Jack Foster (Fost er) of aiding and abetting attempted extortion, in violation of 18 U.S.C. § 2 and the Hobbs Act, 18 U.S.C. § 1951. The district court 1 sentenced Foster to 36 months’ imprisonment. Foster appeals his conviction, challenging the constitutionality of the Hobbs Act, as applied, and in the alternative, challenging the sufficiency of the evidence supporting his conviction. We affirm.-2- I. BACKGROUND Foster and his longtime friend, Billy Freeman (Freeman), served as elected officials (aldermen) on the Pine Bluff, Arkansas, City Council (Council). The Council consisted of eight elected members, with the mayor serving as chairperson. Four members of the Council were black: Fost er, Freeman, Jackie Kirby, and Irene Holcomb (Holcomb). Freeman also servedas executive director of the Southeast Arkansas Community Development Corporation (SACDC).

In 2002, the city of Pine Bluff sel ected the SACDC for three construction projects in Pine Bluff. A grant from the United States Department of Housing and Urban Development (HUD) supplied funding fo r the construction projects. In July 2002, SACDC needed to pay for completed work, but the HUD grant money had not arrived. Freeman, on behalf of SACDC, requested and received two advances from the city of Pine Bluff, to taling $71,648, to pay the bills. When the HUD grant money arrived, Freeman wrote a reimbursement ch eck to the city of Pine Bluff for $71,648 from the SACDC bank account. On January 2, 2003, the city of Pine Bluff received notice the SACDC’s check had been d eclined due to insufficient funds.

In the summer of 2003, Wilson McDougal (McDougal) planned to purchase the Ramada Inn in Pine Bluff and convert it in to an independent living facility for the elderly (the Project). Converting the pr operty with enough parking spaces required the approval of the Council. To surviv e a possible mayoral veto, McDougal needed six favorable votes from the Council.

An Arkansas state senator told McD ougal that Foster and Freeman might be able to help McDougal gain support for th e Project. McDougal held a meeting at a restaurant owned by Ed Schu ll (Schull) to promote the Pro ject. Freeman attended the meeting, talked to McDougal and Schull about the Project, and told them about threats he had received because of a $2,000 debt. Thereafter, McDougal had Schull deliver a $2,000 loan to Freeman.-3- Foster contacted McDougal and arranged a meeting with McDougal and Freeman to discuss the Project. At McD ougal’s request, Schull attended the meeting. According to McDougal and Schull, during the meeting, Foster pointed at Freeman and said, “My boy has got a pr oblem with the City,” and “I can guarantee four black votes if you can help my boy out.” McDougal asked what Freeman needed. Alluding to Freeman’s bad check, which was co mmon knowledge in Pine Bluff, Foster answered, “$71,000.” McDouga l replied he did not have$71,000, but he would call the county attorney, Steve Dalrympl e (Dalrymple), about the check.

McDougal told Dalrymple about Foster’s offer. Dalrymple told McDougal the Federal Bureau of Investigation (FBI) must becontacted. Later that day, in separate conversations, McDougal told Foster and Fr eeman that Dalrymple did not have the check, and McDougal could not do anything about it until hedid. Freeman remarked that Foster and Holcomb each needed $3,000 inexchange for their votes. Foster told McDougal, “as long as [my] boy Billy Freeman [i]s happy, [I am] happy.”

The next day, McDougal met with two FB I agents and agreed to cooperate in an investigation by secretly recording his conversations with Foster and Freeman. On July 10, 2003, McDougal told Foster he had an investor for the Project. They discussed the votes and “making Billy Freem an happy.” The next day, Foster told McDougal that Freeman needed $10,000 to make a payment on the bad check.

A few days later, McDougal met with Freeman and paid him $10,000 using FBI funds. Freeman told McDougal he would give $1,000 to Foster. Freeman and McDougal also discussed the future payments of $3,000 to Foster and Holcomb, and $71,000 to Freeman. McDougal met with Freeman again and paid Freeman an additional $8,000. McDougal testified the payments were in exchange for four Council votes.

On July 17, 2003, McDougal videotaped a meeting with Foster. During the meeting, using funds provided by the FB I agent, McDougal handed Foster $2,000,-4- which Foster put in his pocket. Fostertold McDougal he knew Freeman received some money, but said Freeman had not paid Foster the promised $1,000. Foster talked some more about the four Council votes and told McDougal to get Dale Dixon, a white alderman, to sponsor the legislation. Foster said he and Freeman “were going to do what they needed to do.” Foster later called and told McDougal that Freeman gave him $1,000.

In cooperation with the FB I, McDougal led Foster to believe McDougal had an investor coming to Pine Bluff from Dallas, Texas. On August 7, 2003, Foster called McDougal and referring to Freeman, Fosterreminded McDougal, “Don’t forget about my partner. Don’t forget about my boy next week . . . when yourfolks get in town.” McDougal arranged to have Foster and Freeman meet with the purported Dallas investor at the Pine Bluff Airport.

Foster, Freeman, and McDougal went to the airport cafeteria, and met an undercover FBI agent posing as the Dallas inve stor. The FBI agen t secretly recorded the meeting. The men discussed the Counc il votes in favor of the Project, Freeman’s unpaid debt to the city of Pine Bluff, and the necessity of Freeman being on the Council. The FBI agent outlinedthe future and past paymen ts to Foster and Freeman. Foster did not deny receiving money.

The men left the airport cafeteria and, for privacy, boarded the FBI agent’s airplane. The agent handed Foster and Freeman each an enve lope containing $5,000 in cash. Foster put the money in his pocket, handed the FBI agent a business card displaying Foster’s Council alderman position, and said, “We are committed to working this out.”

After the meeting at the airport, Fo ster continued to contact McDougal to ensure “his boy was taken care of.” Mc Dougal made his lastcall to Foster on September 26, 2003, and told him Freeman had been paid.-5- On December 3, 2003, a grand jury indict ed Foster and Freeman for aiding and abetting attempted Hobbs Act extortion under color of official right, in violation of 18 U.S.C. §§ 2 and 1951. In May 2004, Freemanpled guilty and agreed to cooperate with the government in the case against Fost er. The district court sentenced Freeman to 13 months’ imprisonment and ordered him to pay $350,000 restitution to HUD.

A jury convicted Foster of aiding and ab etting attempted extortion, in violation of the Hobbs Act. Following his convicti on, Foster filed motions for dismissal, judgment of acquittal, and new trial. Th e district court denied the motions and sentenced Foster to 36 months’ imprisonment.

Foster appeals, arguing an attempte d impact on interstate commerce is insufficient to provide subject matter juri sdiction under the Hobbs Act, and therefore the statute was unconstitutionally applied. In the alternative, Foster argues the government did not produce sufficient evid ence to prove attempted extortion under the Hobbs Act.

II. DISCUSSION A. Subject Matter Jurisdiction We first address Foster’s subject matte r jurisdiction challe nge. Title 18 U.S.C. § 3231 states, “The district courts of the Un ited States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” The grand jury indicted Foster for violating two Unite d States statutes: 18 U.S.C. §§ 2 and 1951. Charging Foster with offenses against the laws of the United States provided the district court with statut ory jurisdiction. Foster’s challenge to the application and adequacy of proof of the interstate commerce element of the Hobbs Act does not extinguish fede ral jurisdiction. See , e.g. , United States v. Sabri , 326 F.3d 937, 939-40 n.3 (8th Cir. 2003) (concluding federal courts have statutory jurisdiction when a defendant is charged with violating a federal statute, and if the statute has an express jurisdictional element, federal jurisdiction is not lost merely because the government fails to prove that element of the crime) (citing United States v. Ryan , 41-6- F.3d 361, 363-64, 368 (8th Cir. 1994) (en banc), vacated on other grounds , 227 F.3d 1058, 1064 (8th Cir. 2000)). The district court properly denied Foster’s motion to dismiss for lack of subject matter jurisdiction.

B. Hobbs Act as Applied “We review de novo constitutional challe nges to federal statutes.” United States v. Sheikh , 367 F.3d 756, 764 (8th Cir. 2004).

The Hobbs Act states in pertinent part:
Whoever in any way or degree obstruc ts, delays, or affects commerce or the movement of any article or co mmodity in commerce, by robbery or extortion or attempts or conspires so to do . . . shall be fined under this title or imprisoned. . . . 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(a), (b)(2).

Foster challenges the Hobbs Act as applie d, arguing to allow satisfaction of the interstate commerce requirement of the Hobbs Act by showing a foreseeable impact on interstate commerce reads “the limitations of the federal power under the Commerce Clause out of existe nce.” Foster contends su ch overreaching is prohibited by United States v. Lopez , 514 U.S. 549 (1995).

In Lopez , the Supreme Court struck down section 922(q) of the Gun-Free School Zones Act of 1990 as exceeding Congress’s authority to regulate commerce. Id. at 551. As the Court noted, section 922(q) did not contain a “jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” Id. at 561. The Court concluded, “‘where a general regulatory statute bears a substantial relation to commerce , the de minimis2 In 1996, Congress rectified the problemby adding a jurisdictional element to section 922(q). See18 U.S.C. § 922(q)(2)(A). The amended statute has been upheld as a constitutional application of Congress’ s authority to regulate commerce. See United States v. Danks , 221 F.3d 1037, 1038-39 (8th Cir. 1999) (per curiam) (citing 18 U.S.C. § 922(q)(2)(A) as amended).

3 Foster also cites United States v. Morrison , 529 U.S. 598, 602 (2000), where the Supreme Court, relying on its holding in Lopez , concluded Congress similarly overreached its Commerce Clau se authority in enacting the Violence Against Women Act. As with Lopez , Morrisondoes not support Foster’s as applied constitutional challenge to the Hobbs Act. -7- character of individual instances arising under that statute is of no consequence.’” Id. at 558 (quoting Maryland v. Wirtz , 392 U.S. 183, 197 n.27 (1968)). 2

Lopez does not support Foster’s argument for several reasons. First, the Lopez Court challenged Congress’s Commerce Clause authority to enact a portion of the Gun-Free School Zones Act. Here, Fosterconcedes Congress had the authority to enact the Hobbs Act. Second, in Lopez , the Court held the ch allenged section of the statute was fatally flawed, in part, becauseit lacked a jurisdictional element. The Hobbs Act, on the other hand, contains anexpress jurisdictional element: “Whoever in any way or degree . . . affects commerce or the mo vement of any article or commodity in commerce , by robbery or extortion or atte mpts or conspires so to do . . . shall be fined under this title or imprisoned.” 18 U.S .C. § 1951 (emphasis added). Third, because the Hobbs Act contains a ju risdictional element, Foster’s argument that the government has not shown the required ne xus to interstate commerce is merely a challenge to the sufficiency of the governme nt’s proof of an element of the offense, and not a challenge to the constitutionality of the statute. The Court’s holding in Lopez does not affect the interstate commer ce requirements of the Hobbs Act, and therefore Lopez does not support Foster’s as applied constitutional challenge. 3 See also United States v. Farmer , 73 F.3d 836, 843-44 (8th Cir. 1996) (holding the limitations to Congress’s Commerce Clau se authority, recognized in Lopez , have no effect on the establishment of the inters tate commerce element of the Hobbs Act).-8- For the reasons stated, we conclude th e Hobbs Act is constitutional as applied, and the district court properly denied Foster’s motion to dismiss.

C. Sufficiency of the Evidence Claim: Elements of Attempted Extortion Foster alternatively challenges the su fficiency of the evidence supporting his conviction for attempted extortion under the Hobbs Act. Specifically, Foster argues the government failed to prove (1) Fost er’s conduct had an adverse impact on interstate commerce, (2) Foster extorted property, and (3) Foster acted under color of official right. We review de novo the distri ct court’s denial of a motion for judgment of acquittal. United States v. Thropay , 394 F.3d 1004, 1005 (8th Cir.), cert. denied , 125 S. Ct. 2283 (2005). Evidence is sufficient to support the verdict if “after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime be yond a reasonable doubt.” Id. at 1005-06 (internal quotation omitted).

1. Interstate Commerce Foster argues the government failed to produce sufficient evidence of an adverse impact on interstate commerce. We disagree.

First, Foster misstates the government’s burden of proving the interstate commerce element–adverse as well as beneficial effect s on commerce are proscribed under the Hobbs Act. See United States v. Kaplan , 171 F.3d 1351, 1357 (11th Cir. 1999) (concluding the language of the Hobbs Act “is broad, and it is evidence that Congress intended to protect commerce from any and all forms of effects, whether they are direct or indirect, actual or potential, beneficial or adve rse. For courts to require the effect on commerce to be adverse would significantly narrow the statute.” (footnote omitted)).

Second, our sister circuits have conc luded the government satisfies its burden by showing a potential effect on interstate commerce. See , e.g. , United States v. Lynch , 437 F.3d 902, 908 (9th Cir. 2006) (e n banc) (“The interstate nexus-9- requirement is satisfied by proof of a probable or pot ential impact on interstate commerce.” (internal quotation omitted)); United States v. Verbitskaya , 406 F.3d 1324, 1335 (11th Cir. 2005) (“A Hobbs Act c onspiracy can be proved by showing a potential impact on interstate commerce.”), cert. denied , 126 S. Ct. 1095 (2006); United States v. Urban , 404 F.3d 754, 765-66 & n.3 (3d Cir.) (concluding “a ‘de minimis effect’ in an individual Hobbs Act case need only be ‘potential’”), cert. denied , 126 S. Ct. 732 (2005); United States v. Re , 401 F.3d 828, 835 (7th Cir. 2005) (“Moreover, the impact on commerce need not be actual; given that the Hobbs Act criminalizes attempts as well as complete d crimes, it is enough that the conduct (here, the conspiracy to extort) had the poten tial to impact commerce.”), cert. denied , ___ S. Ct. ___, No. 05-680, 2006 WL 842996 (U.S. Ap r. 3, 2006); United States v. Rivera Rangel , 396 F.3d 476, 482 (1st Cir. 2005) (“The government need only show a realistic probability of a de minimis effect on interstate commerce in order to bring extortion within the reach of the Hobbs Act.” (internal quotation omitted)); United States v. Perrotta , 313 F.3d 33, 36 (2d Cir. 2002) (recognizing “it is the law in our circuit that if the defendants’ conduct pr oduces any interference with or effect upon interstate commerce, whether slight, subtle or even potential, it is sufficient to uphold a prosecution under the Hobbs Act.” (inter nal quotation omitted)); United States v. Toles , 297 F.3d 959, 969 (10th Cir. 2002) (concluding “only a potential effect on commerce is required to satisfy the inters tate commerce element” of the Hobbs Act (internal quotation omitted)); United States v. Turner , 272 F.3d 380, 384 (6th Cir. 2001) (“When a conspiracy is charged under the Hobbs Act, the government need only prove that the scheme would have affected interstate commerce had it been carried out.”); United States v. Brantley , 777 F.2d 159, 162 (4th Cir. 1985) (“The jurisdictional predicate may be satisfied though the impact upon commerce is small, and it may be shown by proof of probabilities without evidence that any particular commercial movements were affected.”).

We agree with the other circuits th at because the Hobbs Act criminalizes attempt crimes, “it is enough that the conduct . . . had the potential to impact commerce.” Re , 401 F.3d at 835. We recognize, however, another panel of our-10- circuit, in a case involving the prosecuti on of a completed crime (Interference with Commerce by Violence) under the Hobbs Act, concluded the Hobbs Act requires “an actual effect on interstate commerce, not ju st a probable or potential impact.” United States v. Williams , 308 F.3d 833, 836-38 (8th Cir. 2002). Williams is distinguishable from the present case because Williams involved the prosecution of a completed offense, and the present case involves the prosecution of an attempt crime. That distinction notwithstanding, a conflict with Williams is avoided because the evidence shows Foster’s conduct had more than a potential effect on interstate commerce.

At trial, McDougal testified the multimillion dollar Project would have involved (1) soliciting contractors nationwide; (2) or dering construction supplies and materials from outside the state of Arkansas; and (3) securing financing through HUD, a federal agency. More directly, an impact on interstate commerce was demonstrated by Foster arranging the scheme, in part, to help Freeman repay the HUD grant money, and by Foster taking money from the undercover ag ent in exchange for promised votes, believing the undercover agent was an invest or from Dallas, Texas. Viewing the evidence in the light most favorable to the government, we conclude a rational jury could have found Foster’s c onduct had an actual, and certainly a potential, effect on interstate commerce.

2. Color of Official Right Relying on United States v. Rabbitt , 583 F.2d 1014 (8th Cir. 1978), abrogated on other grounds by McNally v. United States , 483 U.S. 350, 356 (1987), superseded by statute , 18 U.S.C. § 1346, Foster argues ther e was insufficient evidence he was acting under color of official right, because there was no issue pending before the Council at the time he accepted the money.

Foster’s reliance on Rabbittis misplaced. First, there is no requirement under the Hobbs Act that the offici al must be acting in response to a pending issue; rather, an official’s conduct controls an undertaki ng for purposes of the Hobbs Act when the property is accepted. See , e.g. , Evans v. United States , 504 U.S. 255, 265-68 (1992)-11- (concluding the “under color of official right ” element does not require an affirmative act of inducement by the official, and “the offense is completed at the time when the public official receives a payment in retu rn for his agreement to perform specific official acts”); United States v. Loftus , 992 F.2d 793, 796 (8th Cir. 1993) (“When a public official accepts money and ‘asserts th at his official conduc t will be controlled by the terms of the promise or undertaking, ’ that official has received money ‘under color of official right within the meani ng of the Hobbs Act.’” (quoting McCormick v. United States , 500 U.S. 257, 273 (1991))).

Second, Rabbitt is distinguishable from th e present case. In Rabbitt , we reversed one count of a Hobbs Act conviction agains t a councilman for accepting a fee for introducing an architectural firm to a potential state contractor. Rabbitt , 583 F.2d at 1019, 1028. We concluded the government had not shown the councilman was acting in his official capacity when he introduced the parties, because the councilman did not have the authority to award contracts, nor did the architectural firm reasonably believe he had such authority. Id. at 1028.

The evidence supports the opposite conclu sion in the present case. Foster testified that in his capacity as alderman, he voted on issues brought before the Council. Foster also tes tified he knew McDougal needed a favorable vote from the Council to proceed with the Project. McD ougal testified he be lieved Foster could influence the Council’s vote. Foster guarant eed McDougal four votes in exchange for money to help Freeman. The jury heard audio and videotape recordings of Foster telling McDougal that as long as his boy Billy Freeman was happy, he was happy. Another videotape showed Foster taking money from an undercove r FBI agent posing as an investor from Dallas, as they discu ssed the Council’s votes. The same videotape showed Foster handing the undercover ag ent his business card which displayed Foster’s position as alderman on the Council, and Foster telling the FBI agent he (Foster) and Freeman “were going to do whatthey needed to do.” During a postindictment FBI interview, Foster ad mitted receiving between $1,000 and $10,000 to help Freeman in exchange for Council votes. Foster also admitted knowing Freeman-12- received money to pay the city of Pine Bl uff in exchange for securing Council votes. Foster further admitted telling McDougal th at if Freeman was happy, he was happy. We have no trouble concluding the government presented sufficient evidence upon which the jury could find Foster accepted money under color of official right.

3. Extortion of Property Finally, Foster asserts no property was extorted. “[F]or purposes of the ‘obtaining of property’ requirement, the o ffense of attempted extortion is complete when the defendant has attempted to induce hi s victim to part with property.” United States v. Frazier , 560 F.2d 884, 887 (8th Cir. 1977). In this case, the testimonies of McDougal, Schull, and the unde rcover FBI agent, as well as the audio and videotapes, revealed Foster attempted to induce McDougal to part with over $71,000.

For the reasons stated, sufficient eviden ce supports the jury’s verdict. The district court did not err in denying Foster’s motion for judgment of acquittal.

III. CONCLUSION We affirm Foster’s conviction.

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