*

Honorable Arthur L. Alarcon, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by

designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-8596.

UNITED STATES of America, Plaintiff-Appellee,

v.

Eddie CASTLEBERRY, Defendant-Appellant.

June 23, 1997

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CR370-1(WBH), Willis B. Hunt, Judge.

Before BLACK, Circuit Judge, and FAY and ALARCON*

, Senior Circuit Judges.

FAY, Senior Circuit Judge:

Defendant Eddie S. Castleberry was convicted for violations of the Hobbs Act. On appeal,

Castleberry's main contention is that under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624,

131 L.Ed.2d 626 (1995), the Government must now show a substantial effect, instead of only a

minimal effect, on interstate commerce to support a conviction under the Hobbs Act. Castleberry

further argues that because the Government's evidence failed to establish a substantial(or even a

minimal) effect on interstate commerce, the district court erred in denying his motions under Rule

29 of the Federal Rules of Criminal Procedure. He also claims that the district court erroneously

instructed the jury on the interstate commerce element of the Hobbs Act and erred in certain

evidentiary rulings. We reject all of Castleberry's arguments and affirm his convictions.

Castleberry was a private attorney in Atlanta, Georgia. Kenneth London was Assistant

Solicitor in the Atlanta Traffic Court. As Assistant Solicitor, London prosecuted driving under the
 1

London died in April 1993. 

influence ("DUI") cases and had access to the case files created for each DUI case.

On September 5, 1995, Castleberry was charged in a five count indictment. Count one of

the indictment charged Castleberry with conspiring to violate the Hobbs Act, 18 U.S.C. § 1951

(1994), with London.1

 According to the indictment, Castleberry obtained money from individuals

who had DUI charges pending in the Atlanta Traffic Court and then paid part of this money to

London, who, in return for the payment, illegally "fixed" or "disposed" of Castleberry's clients' DUI

cases. Counts two through five of the indictment charged Castleberry, aided and abetted by London,

with four substantive counts of extortion in relation to four specific individual clients. 18 U.S.C.

§§ 1951, 2 (1994). On February 26, 1996, a jury convicted Castleberry on all counts. Castleberry

timely appealed the judgment of conviction.

I. Interstate Commerce

 The Hobbs Act prohibits extortion or robbery that "in any way or degree obstructs, delays,

or affects commerce or the movements of any article or commodity in commerce." 18 U.S.C. §

1951(a)(1994); Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273-74, 4 L.Ed.2d 252

(1960)("There are two essential elements of a Hobbs Act crime: interference with commerce, and

extortion."). Castleberry argues that in order to satisfy the interference with commerce element of

the Hobbs Act the Government must show that the extortionate activity substantially affected

interstate commerce. In support of this argument, Castleberry relies on United States v. Lopez, 514

U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

In Lopez, the Supreme Court considered whether Congress exceeded its congressional
 2

The Commerce Clause provides: "The Congress shall have power ... [t]o regulate Commerce

with foreign Nations, and among the several States, and with the Indian Tribes...." U.S. Const.

art. I, § 8. 

 3

We note that the authoring Judge of the Ninth Circuit's Atcheson decision is none other than

Judge Alarcon. 

authority under the Commerce Clause2

 in enacting the Gun-Free School Zones Act of 1990, 18

U.S.C. § 922(q)(1)(A)(1988). 514 U.S. at 551-52, 115 S.Ct. at 1626. This Act prohibited a person

from possessing a gun while in a "school zone."

The Court listed three broad categories of activity which Congress could regulate pursuant

to the Commerce Clause: (1) the use of the channels of interstate commerce; (2) the

instrumentalities of interstate commerce; and (3) activities which have "a substantial relation to

interstate commerce ... i.e., those activities that substantially affect interstate commerce." Id. at 559,

115 S.Ct. at 1629-30. After concluding that the Gun-Free School Zones Act only involved the third

category, Id. at 559-60, 115 S.Ct. at 1630, the Court was uncertain whether an activity Congress

intended to regulate must simply affect interstate commerce or substantially affect interstate

commerce. Id. "The Court concluded that the proper test for a statute which "neither regulates a

commercial activity nor contains a [jurisdictional] requirement that the [regulated activity] be

connected in any way to interstate commerce' was whether the regulated activity "substantially

affects' interstate commerce." United States v. Atcheson, 94 F.3d 1237, 1241 (9th Cir.1996)(quoting

Lopez, 514 U.S. at 551-52, 559-60, 115 S.Ct. at 1626, 1630), cert. denied, --- U.S. ----, 117 S.Ct.

1096, 137 L.Ed.2d 229 (1997)3. Applying these principles to the Gun-Free School Zones Act, the

Court concluded that "[t]he possession of a gun in a local school zone is in no sense an economic

activity that might, through repetition elsewhere, substantially affect any sort of interstate

commerce." Id. at 567, 115 S.Ct. at 1634. Accordingly, the Court held that the Act violated the
Commerce Clause. Id. at 551-52, 115 S.Ct. at 1626.

Prior to Lopez, this Court had held that the Government need only prove that extortionate

activity has a minimal effect on interstate commerce to satisfy the Hobbs Act jurisdictional

requirement. United States v. Alexander, 850 F.2d 1500, 1503 (11th Cir.1988); United States v.

Jackson, 748 F.2d 1535, 1537 (11th Cir.1984). Castleberry contends the Supreme Court's decision

in Lopez alters the jurisdictional nexus, requiring the Government to prove a substantial effect on

interstate commerce, and not simply a minimal effect. We disagree.

Since Lopez was decided, this Court has not directly decided whether Lopez has changed "the

measure of evidence necessary to support the interstate commerce element of a Hobbs Act

prosecution." See United States v. Frost, 77 F.3d 1319, 1320 (11th Cir.1996), judgment vacated on

other grounds, --- U.S. ----, 117 S.Ct. 1816, --- L.Ed.2d ---- (1997). However, this Court has

rejected similar Lopez challenges in other contexts. United States v. Jackson, 111 F.3d 101 (11th

Cir.1997)(Drug-Free School Zones Act did not exceed congressional authority under the Commerce

Clause); United States v. McAllister, 77 F.3d 387 (11th Cir.)(finding constitutional a statute which

makes possession of a firearm by a felon a criminal offense), cert. denied, --- U.S. ----, 117 S.Ct.

262, 136 L.Ed.2d 187 (1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.1995)(holding that Freedom

of Access to Clinic Entrances Act of 1994 was within Congress' Commerce Clause power).

In McAllister, the defendant, relying on Lopez, argued that Congress in enacting 18 U.S.C.

§ 922(g)(1), which makes it unlawful for a felon to "possess in or affecting commerce, any firearm

or ammunition," exceeded its Commerce Clause power by regulating the mere possession of a gun.

We rejected defendant's Lopez' argument mainly because the language of § 922(g)(1) contained a

jurisdictional element ("possess in or affecting commerce, any firearm or ammunition,"), which the

statute in Lopez, 18 U.S.C. § 922(q), did not contain. McAllister, 77 F.3d at 390.
Like the statute involved in the McAllister case, the Hobbs Act contains a jurisdictional

element. See 18 U.S.C. § 1951(a) ("in any way or degree obstructs, delays, or affects commerce or

the movements of any article or commodity in commerce"). It is this jurisdictional element of the

Hobbs Act that defeats Castleberry's Lopez challenge. Unlike the statute involved in Lopez, the

Hobbs Act contains a jurisdictional requirement that the extortion be connected in any way to

interstate commerce. Because the Hobbs Act contains this jurisdictional element, we continue to

hold that the Government only needs to establish a minimal effect on interstate commerce to support

a violation of the Hobbs Act.

We also note that while this Court has not specifically determined Lopez ' impact on the

interstate commerce element of the Hobbs Act, other circuit courts have addressed that issue. All

of the courts that have addressed the issue have held that, despite Lopez, the Government still needs

to show only a minimal effect on interstate commerce to support a conviction under the Hobbs Act.

United States v. Atcheson, 94 F.3d 1237, 1242 (9th Cir.1996)("Because the Hobbs Act is concerned

solely with inter state, rather than intra state, activities, we conclude that Lopez 's " substantially

affects' test is not applicable."), cert. denied,--- U.S. ----, 117 S.Ct. 1096, 137 L.Ed.2d 229 (1997);

United States v. Bolton, 68 F.3d 396, 399 (10th Cir.1995)("We therefore conclude the Hobbs Act

represents a permissible exercise of the authority granted to Congress under the Commerce Clause,

and that under Lopez, all the government need show is a de minimis effect on interstate commerce

in order to support a conviction under the Act."), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133

L.Ed.2d 887 (1996); United States v. Stillo, 57 F.3d 553, 558 n. 2 (7th Cir.)("Nor did the Lopez

decision undermine this Court's precedents that minimal potential effect on commerce is all that

need be proven to support a conviction."), cert. denied, --- U.S. ----, 116 S.Ct. 383, 133 L.Ed.2d 306

(1995); see also United States v. Farmer, 73 F.3d 836, 843 (8th Cir.)(after Lopez decision, robbery
of local convenience store satisfies effect on interstate commerce), cert. denied, --- U.S. ----, 116

S.Ct. 2570, 135 L.Ed.2d 1086 (1996). The logic and reasoning expressed in our sister circuit courts'

opinions is further persuasive support that Lopez did not change the measure of evidence needed to

support the interstate commerce element of a Hobbs Act case.

II. The Sufficiency of the Evidence

 Having concluded as a matter of law that the Hobbs Act only requires a minimal effect on

interstate commerce to support a conviction, we next consider whether the Government's evidence

was sufficient to establish such in this case. Castleberry challenges the denial of his motions for

judgment of acquittal based on the sufficiency of the evidence. In reviewing the sufficiency of the

evidence, we must consider the evidence in the light most favorable to the Government and draw

all inferences and credibility choices in favor of the jury's verdict. United States v. Adair, 951 F.2d

316, 318 (11th Cir.1992). Castleberry's conviction will be affirmed if "any reasonable construction

of the evidence allowed the jury to find appellant[ ] guilty beyond a reasonable doubt." United

States v. McKinley, 995 F.2d 1020, 1025 (11th Cir.1993). Under this standard and based upon our

review of the record, we hold there is sufficient evidence to support the jury's finding that

Castleberry's extortionate activity had at least a minimal effect on interstate commerce.

In attempting to establish an interstate commerce element in this case, the Government

presented the testimony of Thomas Enright, an official with the U.S. Department of Transportation.

In general, Mr. Enright testified to the effect of non-prosecuted DUI cases on interstate commerce.

According to Mr. Enright's testimony, if a person knows he or she can get away with drinking and

driving, the more likely the person is to drink and drive. Mr. Enright went on to testify that the more

often a person drinks and drives, the more likely a person is to have an accident. DUI accidents

account for economic losses of over 46 billion dollars a year. Out of this amount, a percentage of
the medical, social security disability, and unemployment costs are funded by the Federal

Government. In addition, Mr. Enright commented on the demoralizing effect that the failure to

prosecute DUI cases has on police officers. Utilizing this testimony, the Government argues that the

DUI ticket scheme engaged in by Castleberry and London had at least a minimal impact on interstate

commerce.

The Government also presented evidence that fines paid in connection with DUI offenses

went into the City of Atlanta's general fund. Out of the general fund, the City of Atlanta purchased

goods from companies involved in interstate commerce. For example, Dr. William McLemore

testified that because the State of Georgia had no oil refineries, all of the gasoline purchased with

money from the City's general fund came from interstate commerce. Pursuant to state law, the City

of Atlanta cannot run a deficit. Because London and Castleberry were fixing DUI cases, the City

of Atlanta did not collect all the fines it was entitled to and consequently Castleberry's actions

decreased the amount of revenue the City was able to spend in interstate commerce.

Castleberry contends the Government's interstate commerce evidence is "thin and

speculative, concerning matters that "might' have occurred rather than matters that "actually'

occurred." Castleberry cites United States v. Frost, 77 F.3d 1319 (11th Cir.1996), judgment vacated

on other grounds, --- U.S. ----, 117 S.Ct. 1816, --- L.Ed.2d ---- (1997), as his best case to support

his position that the Government's evidence is insufficient.

In Frost, we found that the Government's evidence failed to show that the resignation of a

city council member from a six-member city council would affect interstate commerce. Frost, 77

F.3d at 1320. In accordance with this finding, we dismissed the defendants' Hobbs Act convictions.

Castleberry's reliance on Frost is misplaced. In fact, we find Frost to be supportive of the

conviction. Extending the analysis used in Frost to the facts of our case, we find that the
Government's evidence demonstrated that Castleberry and London's fixing DUI cases directly

affected interstate commerce. We have already determined as a matter of law that the impact on

commerce does not need to be substantial; all that is required is minimal impact. Resolving

inferences from Mr. Enright's testimony in favor of supporting the verdict, we conclude that the jury

could have found Castleberry guilty of the Hobbs Act interstate commerce element.

Our conclusion is reinforced by the opinion of the Fifth Circuit in United States v. Wright,

797 F.2d 245 (5th Cir.1986). The facts of Wright are extremely similar to ours. In Wright, two

attorney defendants appealed their convictions under the Hobbs Act. The defendants had violated

the Hobbs Act, "by conspiring to extort money from a law firm and its clients in exchange for not

prosecuting drunken drivers...." Wright, 797 F.2d at 246.

On appeal, the defendants claimed that the government's evidence failed to establish that the

extortion affected interstate commerce. Wright, 797 F.2d at 248. In a bench trial, the district court

disagreed. Relying on testimony similar to Mr. Enright's, see Wright 797 F.2d at 249, the district

court concluded that the government had proved the interstate commerce element of the Hobbs Act.

Our sister circuit court found the evidence sufficient for the trial judge to find that the attorney

defendants' extortion affected interstate commerce. We have no problem concluding that the jury's

construction of the evidence in this case could likewise find Castleberry guilty of the Hobbs Act

jurisdictional element.

III. The Jury Instruction 

 We next consider Castleberry's contention that the district court erroneously instructed the

jury. In instructing the jury on the interstate commerce element of the Hobbs Act, the district court

gave the following jury instruction:

While it is not necessary that the Government prove that the defendant specifically intended

to interfere with interstate commerce, it is necessary concerning this issue that the
Government prove that the natural consequences of the acts alleged in the indictment would

delay, interrupt or adversely affect "interstate commerce." The phrase "interstate commerce"

means the flow of commerce or business activities between two or more states. It also

means commerce between places within the same state but passing through anyplace outside

of that state. I instruct you that if you believe beyond a reasonable doubt that the defendant

committed extortion as charged in the indictment, and you believe that the Government's

evidence regarding the impact on interstate commerce beyond a reasonable doubt, then, as

a matter of law, the jurisdictional requirements of the Hobbs Act relating to interstate

commerce under Section 1951 of Title 18 of the United States Code have been met.

R11-1490. Castleberry claims this instruction was in error because the district court took the

interstate commerce element away from the jury. See United States v. Gaudin, 515 U.S. 506, 115

S.Ct. 2310, 132 L.Ed.2d 444 (1995)(holding that the Constitution "gives a criminal defendant the

right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime

with which he is charged."). We disagree.

 The district court has broad discretion in formulating a jury charge as long as the charge as

a whole is a correct statement of the law. United States v. Perez-Tosta, 36 F.3d 1552, 1564 (11th

Cir.1994). This Court will not reverse a conviction unless we find that issues of law were presented

inaccurately or that the charge improperly guided the jury in such a substantial way as to violate due

process. Id.

Contrary to Castleberry's assertion that the district court decided the interstate commerce

nexus, the plain reading of the jury instruction leads us to conclude that the district court correctly

instructed the jury that it was up to them to decide the issue. "I [the judge] instruct you [the jury]

that if you [the jury] believe beyond a reasonable doubt that the defendant committed extortion as

charged in the indictment and you [the jury] believe that the Government's evidence regarding the

impact on interstate commerce beyond a reasonable doubt...." While the jury instruction may be a

bit odd in incorporating the "as a matter of law" language, the district court did not misstate the

interstate commerce issue "in such a substantial way as to violate due process."
Castleberry is correct that Gaudin requires a jury, and not a judge, to determine each element

of the crime to which he is charged with. However, Castleberry is simply wrong in arguing that the

jury in his case did not decide each element of his Hobbs Act convictions. It is clear to us that the

jury decided the interstate commerce element. The district court complied fully with the teachings

of Gaudin, when it instructed the jury to decide whether the Government's evidence had established

an impact on interstate commerce.

IV. The Evidentiary Rulings

 Finally, Castleberry argues that the district court erred in three evidentiary rulings: (1)the

admission of entries from London's "DayTimers"; (2)admitting the testimony of three witnesses

who paid London, but had no connection to Castleberry; and (3)improperly limiting the

cross-examination of a witness. In reviewing a district court's evidentiary decisions, our standard

of review is whether the district court abused its discretion. See United States v. Veltmann, 6 F.3d

1483, 1491 (11th Cir.1993)("Evidentiary rulings challenged on appeal will not be overturned absent

clear abuse of discretion").

 The first alleged evidentiary error concerns the district court's admission of two entries from

London's pocket calendar book called "DayTimers." The two entries from London's DayTimers

consisted of two lists of names and initials with a three or four digit number next to each name or

set of initials. The written entries were in London's handwriting. One of the entries was dated June

30, 1987, and the other entry was on a page dated July 1, 1987 through September 30, 1987.

Included in the lists of names and initials are entries with the name Eddie and the initials E.S.C. Next

to these names or initials are various numbers ranging from 150 to 1250. There were other names

and initials listed in the entries. For example, the entries contained the names Rozen and Cochren

with various numbers next to these two names. During the trial, Roger Rozen and a James Cochran,
each testified that they paid London various amounts to fix DUI cases.

Both sides agree that the entries can only be admissible if they are considered nonhearsay,

Fed.R.Evid. 801(d)(2)(E), or fall within an exception to the hearsay rule. Fed.R.Evid. 804(b)(3),(5).

We conclude that the entries were admissible as nonhearsay under Fed.R.Evid. 801(d)(2)(E).

Fed.R.Evid. 801(d)(2)(E) provides that an admission by a party-opponent will not be

considered hearsay if "[t]he statement is offered against a party and is a statement by a coconspirator

of a party during the course and in furtherance of the conspiracy." In order for the coconspirator

statement to be admissible under this rule as nonhearsay, "there must have existed a conspiracy

involving the declarant and the defendant, and the statement must have been made during the course

and in furtherance of the conspiracy." United States v. Turner, 871 F.2d 1574, 1581 (11th Cir.1989).

Castleberry does not strenuously contest that the entries are statements and that a conspiracy existed

between himself and London. However, Rule 801(d)(2)(E) also requires that the statement be both

"during the course" and "in furtherance of" the conspiracy. Castleberry claims that because the

entries were neither made at the time of the conspiracy nor in furtherance of it, the district court

erred in admitting them. The DayTimers' entries were located on pages containing dates in the year

1987 (June 30, 1987 and July 1, 1987 through September 30, 1987). Count one of the indictment

states "[b]eginning on a date which is unknown to the Grand Jury, but which occurred on or before

January 1, 1988, and continuing until on or about April 1, 1993,...." Based on these dates and

relying on the "during the course" language in Rule 801(d)(2)(E), Castleberry contends the entries

were preconspiracy. We disagree.

The dates of the entries are reasonably close to the dates of the conspiracy alleged in the

indictment. The grand jury indictment clearly states "beginning on a date which is unknown to the

Grand Jury, but which occurred on or before January 1, 1988...." R1-1 (emphasis added).
Moreover, both Rozen and Cochran testified that they paid London prior to the January 1, 1988 date

alleged in the indictment. Rozen testified that he sent a check dated March 27, 1987, in the amount

of $500.00 to London. The five hundred dollar check matches the amount next to Rozen's name on

the DayTimer entry dated June 30, 1987. In addition, Rozen produced a check for $200.00 dated

July 20, 1987, that matched the amount next to Rozen's name for the DayTimer entry dated JulySeptember 1987. Rozen and Cochran's testimony corroborates the language and dates of the

indictment and satisfies the "during the course" requirement of Fed.R.Evid. 801(d)(2)(E).

 We next consider Castleberry's argument that the entries were not made "in furtherance of

the conspiracy." Whether or not the entries are admissible as evidence is a preliminary question for

the court to decide. Fed.R.Evid. 104(a). As we have previously stated:

Before admitting a coconspirator's statement over an objection that the statement does not

qualify under Rule 801(d)(2)(E), a district court must be satisfied that the party offering the

testimony has proved by a preponderance of the evidence that ... the statement was made

during the course and in furtherance of the conspiracy.

United States v. Byrom, 910 F.2d 725, 734 (11th Cir.1990)(citing Bourjaily v. United States, 483

U.S. 171, 175-76, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987)). The district court's factual

finding that a statement is made in furtherance of a conspiracy pursuant to Rule 801(d)(2)(E) is

reviewed under the clearly erroneous standard. Byrom, 910 F.2d at 734. The entries need not be

necessary to the conspiracy; they must only further the conspiracy. United States v. Caraza, 843

F.2d 432, 436 (11th Cir.1988).

In our case, the district court found as a matter of fact that London's handwritten entries of

monies Castleberry owed London were made in furtherance of the conspiracy. We do not believe

the district court was clearly erroneous in making this factual finding. Indeed, Castleberry fails to

offer any reason why this factual finding was erroneous. Accordingly, we do not believe the district

court erred in admitting the two entries from London's DayTimers.
As to Castleberry's other two evidentiary challenges, we summarily dismiss them. We do

not believe the district court abused its discretion in admitting the testimony of witnesses who paid

London on behalf of clients other than those of Castleberry or individuals who paid London directly.

Nor do we believe the district court abused its discretion in restricting Castleberry's

cross-examination of Lisa Williams. See R2-51 (We find sufficient the district court's written order

that explained its reasons for sustaining "the Government's objection to defendant's

cross-examination of Williams and presentation of extrinsic evidence.").

V. Conclusion

For the reasons stated above, we affirm Castleberry's convictions.

AFFIRMED.