___________ No. 95-1525

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Robert M. Baker, * * Defendant - Appellant. *

___________ Submitted: November 15, 1995 Filed: April 29, 1996

___________ Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.
St. Louis police officer Robert M. Baker appeals his conviction and thirty-monthsentence for violating the Travel Act, 18 U.S.C. § 1952(a). Baker asserts that his extortion of a St. Louis motorist was not linked to interstate commerce, that the district court improperly admitted evidence Baker had been extorting motorists for more than ten years, and that the court misapplied the Sentencing Guidelines. We remand for furthe r consideration of one sentencing issue but otherwise affirm.
Early in the morning of February 16, 1994, Baker and his partner , Alderi ck Reed, driving an unmarked police car, stopped motorist Scot t Crawford on Kingshighway in St. Louis. Baker searched Crawford's vehicle and discovered a loaded gun concealed beneath the driver's seat. Bake r handcuffed Crawford, put him in the back seat of the police car, and drove to a police station,

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with Reed following i n Crawford's car. Baker told Crawford, "we can work it off, if you keep your mouth shut."

At the s tation, Baker placed Crawford in an interrogation room an d told the still-handcu ffed Crawford, "you'll be spending like $5,000 for a lawyer an d . . . going through the courts . . . or you can work it ou t throughus." Crawford chose the latter option. Baker asked if Crawford could "get something tonight." Crawford repliedthat he could withdraw up to $300 fr om his account at a local bank, Normandy Bank, by using a n automatic teller machine (ATM). Crawford and Ba ker agreed to use for this purpose a nearby ATM operated by Mercantile Bank of St. Louis.

Crawford then drove his own car to the Mercantile ATM, with th e officers following. At 2:22 a.m., he withdrew $300. Crawford exchanged the money for his gun and ammunition and drove home. At his wife's urging , he reported the incident the next day. Baker wa s charged and convicted of viola ting the Travel Act, 18 U.S.C. § 1952, which provides in relevan t part:
(a) Whoever . . . uses . . . any facility in interstat e or foreign commerce, with intent to -- * * * * * (3) otherw ise promote, manage, establish, carry on, or facilitate . . . any unlawful activity, and thereafter performs or attempts to perform -- (A) an act d escribed in paragraph . . . (3) shall be fin ed under this title, imprisoned not more than 5 years, or both . . . .

* * * * * (b) As used in this section (i) "unlawf ul activity" means . . . (2) extortion, bribery, or arson in violationof the laws of the State in which committed . . . .

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There was evidence at trial that Mercantile Bank operates a network o f ATMs. Customers of participating banks like Normandy may use these ATMs to make interstate deposits and withdrawals. Th ough Crawford's withdrawal triggered an entirely intrastate electronic transfer between Normandy and Mercantile, the jury found that Baker caused Cra wford to use a facility in interstate commerce.

I.

Baker fir st argues that the indictment failed to allege and th e gov ernment failed to prove a sufficient nexus to interstate commerce t o fall within the jurisdictional limits of the Travel Act. He relies o n Rewis v. United States , 401 U.S. 808, 811 (1971), in which the Suprem e Court held that "conducting a gambling operation frequented by out-of-stat e bettors, by itself," does not violate the Travel Act, and on cases holding that a n incidental or fortuitous connection to interstate commerce i s insufficient, such as United States v. Altobella , 442 F.2d 310, 313-15 (7t h Cir. 1971). We conclude those cases are distinguishable.

We reject Baker's contention that his conduct had an insufficien t eff ect on interstate commerce. Baker's extortion did not merely affec t interstate commerce. Federal jurisdiction was established by proof that Bake r carried out extortion by causing Crawford to use an interstat e network of ATMs which comprise, in the words of the statute, a "facility in interstate or foreign commerce." "Congress is empowered to regulate an d protect the instrumentalities of interstate comm erce . . . even though the threat may come only from intrastate activities. " United States v. Lopez , 115 S. Ct. 1624, 1629-30 (1995).

Moreover, use of this interstate facility was not merely incidental to Baker's unlawful activity, like the subsequent use of the mails to clea r a personal check in Altobella . Here, Baker wished to extort a cash paymen t from Crawford before releasing him.

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That could only be accomplished at 2:20 in the morning by accessing a n interstate ATM facility. Thus, there was suffic ient evidence for the jury to find that Baker caused Crawford to use this interstate facility to carr y on Baker's unlawful a ctivity. "[I]t is enough that the interstate travel
or the use of interstate facilities makes easier or facilitates th e unlawful activity." United States v. Perrin , 580 F.2d 730, 736 (5th Cir. 1978), aff'd , 444 U.S. 37 (1979). Baker's unlaw ful conduct falls squarely within the literal language of the Travel Act. See United States v
. Pecora , 693 F.2d 421, 424 (5th Cir. 1982), cert. denied , 462 U.S. 111 9 (1983); United States v. Bursten , 560 F.2d 779, 783-84 (7th Cir. 1977) ; United States v. Eisner , 533 F.2d 987, 992 (6th Cir.), cert. denied , 429 U.S. 919 (1976).

II.
Baker next challenges admission of the testimony of Earl Parnel l, who purchased ten to twelve firearms from Baker between late 1977 and 1987
. When asked how Baker had obtained these firearms, Parnell explained:
[Baker] said you can fin d these [people] that comes along, you stop th em for a traffic stop or whatever, he says, and yo u searc hthe car, they got a gun in the car, and he said, th e du mb[expletive] are scared to go to jail . . . . He says, I tell them you got a choice to make. You can either work it out with me or you can go deal it with the courts; which one yo u want to do? Most of the time, they said, hey, go ahead an d take the gun.
The district court in structed the jury that Parnell's testimony was to be considered only to determine Baker's state of mind or plan.
Fed. R. Evid. 404(b) allows admissio n of "prior bad act" evidence if it is relevant to a material issue, established by a preponderance of the evidence, more probative than prejudicial, and similar in kind and close in time. United States v. Hazelett , 32

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F. 3d 1313, 1319 (8th Cir. 1994). It is a rule of inclusion; we wil l overturn the admissio n of Rule 404(b) evidence only if "the appellant can show that the evidenc e in question clearly had no bearing upon any of the issues involved." United States v. Street , 66 F.3d 969, 976 (8th Cir
. 1995) (quotation omitted).
Evidence of prior crimes or bad acts is admissible to show a common plan or scheme, see United States v. Sanchez , 963 F.2d 152, 155 (8th Cir. 1992), or intent, see United States v. Crouch , 46 F.3d 871, 875 (8th Cir.) , cert. denied , 116 S. Ct. 193 (1995); United States v. Rivera-Mendina , 845 F.2d 12, 16 (1st Cir.), cert. denied , 488 U.S. 8 62 (1988) (prior extortion scheme admissible to show intent). Parnell testified to a remarkabl y simila r series of prior actions by Baker: a motorist is stopped fo r speeding, a firearm is discovered, and the motor ist is given the choice of facing charges or "wo rking it out" with Baker. Coupled as it was with an appropr iate limiting instruction, this was clearly proper Rule 404(b ) evidence.

Baker also contends that the district court abused its discretio n becau se the events were too remote in time and Parnell's testimony to o prejudicial. Proximity in time is a factor in deciding whether to admit 404(b) evidence, but there is no fixed period within which the prior acts must have occurred. Lapses of time greater than in this case may b e reasonable, see United States v. Shoffner , 71 F. 3d 1429, 1432-33 (8th Cir. 1995), particularly if the prior acts are "so nearly identical in method
as to earmark them as the handiwork of the accused," United States v. Drew , 894 F.2d 965, 970 (8th Cir.), cert. denied , 494 U.S. 1089 (1990) (quotatio n omitted). Here, the prior acts were virtually i dentical and were repeated
over the course of a decade. There was no abuse of discretion i n concluding that this highly probative testimony was neither too remote nor too prejudicial to be admissible under Rule 404(b).

### -6- III.

Baker fur ther argues that the district court made two errors i n applying the Sentenci ng Guidelines, resulting in an improper base offense level and an unwarranted enhancement for abuse of a position of publi c trust. We review the district court's fact finding for clear error, and its application of the guidelines de novo , "giving due deference to th e district court's appl ication of the guidelines." United States v. Evans , 30 F.3d 1015, 1020 (8 th Cir. 1994), cert. denied , 115 S. Ct. 1383 (1995).

A. Bas e Offense Level. Baker argues that his base offense leve l should be six under § 2E1.2, the section referenced for violations of 18 U.S.C. § 1952. See USSG App. A. However, § 2E1.2(a)(2) says to use the base offense level for the underlying crime, if greater than six. Here, the under lying crime was the state law offense of extortion by a polic e officer, so the guideline for the most analogous federal offense must be found. S ee § 2E1.2, comment. (n.2); United States v. Langley , 919 F.2 d 926 , 929-31 (5th Cir. 1990). The district court chose § 2C1.1, whic h governs bribery and e xtortion "Under Color of Official Right." We agree. See United States v. Mariano , 983 F.2d 1150, 1158 (1st Cir. 1993).
Section 2C1.1 prescribes a minimum base offense level of ten bu t also
cro ss references other sections. The district court applied the cross

reference to § 2J1.2, obstruction of justice, on the ground that Baker's extortion offense "was committed for the purpose of . . . obstructin g justice in respect to, another criminal offense," § 2C1.1(c)(2). The othe r crimin al offense was, of course, Crawford's firearm violation. Th e obstru ction of justice cross reference, plus a three-level increase fo r "substa ntial interference with the administration of justice" under § 2J1.2(b)(2), increased Baker's base offense level to fifteen.

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See § 2J1.2, comment. (n.1) (substantial interference includes "improper termination of a felony investigation").
Baker arg ues that the court should instead have cross-referenced to § 2X3.1, the accessory after the fact guideline, which calls for a bas e off ense level six levels lower than that of Crawford's firearm offense
. We disagree. Section 2C1.1(c)(2) says to cross reference to obstruction
or accesso ry "as appropriate." Conduct such as Baker's might fit th e statutory definition of either accessory after the fact or obstruction of justice. See 18 U.S. C. §§ 3, 1510. Section 2J1.2(c)(1) contains its own
cross reference to § 2X3.1, but says to apply that cross reference only "i f the r esulting offense level [under § 2X3.1] is greater than" the leve l determined under § 2J 1.2(a) and (b). In United States v. Pompey , 17 F.3d 351 (7t h Cir. 1994), the court upheld a cross reference from § 2C1.1 t o § 2X 3.1, rather than § 2J1.2, because that produced the highest bas e offense level. Here, a cross reference to § 2X3.1 would have complicated the analys is -- by requiring calculation of the base offense level o f whatev er firearms offenses Crawford may have committed under state o r federal law -- and apparently would not have yielded a greater base offens e level than § 2J1.2. In these circumstances, we conclude that the district court c orrectly applied these interrelated guideline provisions. Se e Mariano , 983 F.2d at 1158.

B. Abu se of Public Trust. Baker next challenges the two-leve l increase he received for abuse of public trust under USSG § 3B1.3. Becaus e police officers clearly occupy positions of public trust, the inquiry in most cases is whether defendant used a police officer's special knowledge
or access to facilitate or conceal the offense. See United States v
. Williamson , 53 F.3d 1500, 1525 (10th Cir.), cert. denied , 116 S. Ct. 218 (1995 ). We agree with the district court that, from this perspective , Baker's conduct was amost egregious abuse of a position of public trust.

### -8- However, § 3B1.3 provides that the a buse of trust enhancement should not be applied "if an abuse of trust or skill is included in the bas e offense level or spec ific offense characteristic," in other words, if "an abuse of trust is so central to [defendant's] crime that the abuse would be included" in calculating that crime's base offense level. United State s v. Claymore , 978 F.2d 421, 423 (8th Cir. 1992). Abuse of trust is a n element of extortion under color of public office. See United States v. Butt , 955 F.2d 77, 88-90 (1st Cir. 1992). Thus, Baker argued to th e district court, imposing this enhancement was impermissible "doubl e counting." He renews that argument on appeal. Unfortunately, neither the court's comments at s entencing, nor the government's brief to this court, address why the enhancement is nonetheless proper.

Th e interplay between § 2C1.1 extortion offenses and the § 3B1. 3 enhancement is addressed by Application Note 3 to § 2C1.1:

3. Do not apply § 3B1.3 except where th e offense level is determ ined [by a cross reference mandated by] § 2C1.1(c)(1) , (2), or ( 3). In such cases, an adjustment from § 3B1.3 ma y apply.

USSG § 2C 1.1, comment. (n.3). Here, Baker's base offense level wa s determined by just such a cross reference to the obstruction of justic e guideli ne, § 2J1.2. In United States v. Ford , 21 F.3d 759, 766-67 (7t h Cir. 19 94), in which defendant received an abuse of trust enhancemen t because his base offense level was determined under the RICO guideline, no t § 2C1.1, the court explained:
App lication Note 3 makes clear that the abuse of trus t exemption does not carry over in cross-referencing situations. Once a different guideli ne comes into play, the abuse of trust enh ancement should be applied even though the new offense i s based on the underlying offense of public bribery, presumably because the abuse of trust is not already reflectedin the base offense levels for those other [cross referenced] offenses.

### -9- Application Note 3 and Ford establish that Baker's double countin g argument does not prevail simply because the starting point for determinin g his ba se offense level was § 2C1.1. However, there is a furthe r complexity. After cross referencing from § 2C1. 1 to § 2J1.2, the district court further increased Baker's base offense lev el by three levels because of a "Specific Offense Characteristic," Baker's substantial interference with the administration of justice. See § 2J1.2(b)(2). Recall tha t § 3B1.3 says not to e mploy the abuse of trust enhancement "if an abuse of trust or skill is included in the base offense level or specific offense characteristic ." The issue in this case thus comes down to whether there is double counting, within the meaning of § 3B1.3 and Application Note 3 to § 2 C1.1, if the § 3B1.3 enhancement is added to this specifi c applicationof § 2J1.2. We have found no relevant Guidelines precedent. Because the issue is, at least in part, fact intensive, we conclude that it should be addressed in the first instance by the district court.
Accordingly, we remand for reconsideration of the USSG § 3B1. 3 sente ncing issue. In all other respects, the judgment of the distric t court is affirmed.
McMILLIAN, Circuit Judge, dissenting.

I respectfully dis sent from Part I of the majority opinion. AlthoughI believe an ATM can be and ordinarily is an instrument used in interstate commerce, I find, under the circumst ances of the present case, the use was neither c aused by appellant nor has a sufficient nexus to the offense to fall within the jurisdictional limits of the Travel Act. Here, the use o f the ATM was suggested by Crawford and the use was entirel y incidental and fortui tous. Hence, I would reverse the conviction because the use of the ATM was in no way a part of the p lan or scheme to carry out an extortion.

### -10- A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.