IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60426
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY BUTLER
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Mississippi (00-CR-167)
December 6, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Stanley Butler appeals his conviction and sentence for
extortion in violation of the Hobbs Act, 18 U.S.C. § 1951(a). We
reject all of his arguments and affirm both his conviction and
sentence.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I
A police informant, Russell Davis, approached the FBI in
Jackson, Mississippi with information about corrupt police
officers. Davis began undercover work for the FBI posing as a
drug dealer looking for police protection for his criminal
operations. He began paying police officer Ronald Youngblood to
provide such protection. Youngblood, when confronted by the FBI
with the evidence against him, agreed to cooperate with the
investigation.
Youngblood led the FBI to another police officer, Stanley
Butler. Youngblood had previously had discussions with Butler
about providing protection for Davis. Now cooperating with the
FBI, Youngblood had further discussions with Butler during which
Butler agreed to provide protection for Davis' drug operation.
Youngblood gave Butler $200 on two separate occasions in exchange
for this commitment. Youngblood wore an audio recording device
for some of these conversations and was able to record five of
them. After recording these conversations, Youngblood reviewed
the tapes and transcripts and signed and dated them.
Butler was convicted after a jury trial of extortion under
color of official right in violation of 18 U.S.C. § 1951(a). He
was sentenced to 12 months of imprisonment.
2 II
A
Butler first argues that the trial court's failure to
instruct the jury that it must find the quid pro quo element of
extortion beyond a reasonable doubt is reversible error.1 Since
Butler did not challenge the instructions at trial, our review is
for plain error only.2 "The Court of Appeals should correct a
plain forfeited error affecting substantial rights if the error
seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings."3
The trial court used the Fifth Circuit Pattern Jury
Instruction on Hobbs Act extortion.4 The jury was instructed
that in order to convict, they must find that the government
proved "the following three essential elements beyond a
reasonable doubt: First: That the defendant wrongfully obtained
property from another with that person's consent; Second: That
the defendant did so under color of official right; and Third:
1 We have not held, and the Government does not concede, that quid pro quo is an element of an offense under § 1951 when the offense does not involve campaign contributions to elected officials. Under those circumstances, the Supreme Court has found that quid pro quo is an element of the offense. See McCormick v. United States, 500 U.S. 257, 273, 274 (1991). However, proof of a quid pro quo is especially necessary in the campaign contribution context, because otherwise all campaign contributions could conceivably violate the Hobbs Act. Id. We assume, without deciding, that quid pro quo is an element of the offense charged here.
2 United States v. Lankford, 196 F.3d 563, 575 (5th Cir. 1999).
3 United States v. Olano, 507 U.S. 725, 736 (1993). 4 Fifth Circuit Pattern Jury Instruction 2.74 (1998).
3 That the defendant's conduct interfered with interstate
commerce." While the court did not explicitly provide that quid
pro quo was an element of the offense, the court went on to
further define each of these "three essential elements,"
including this instruction:
Wrongfully obtaining property under color of official right is the taking or attempted taking by a public officer of property not due to him or his office, whether or not the public official employed force, threats, or fear. In other words, the wrongful use of otherwise valid official power may convert dutiful action into extortion.
If a public official accepts or demands property in return for promised performance or nonperformance of an official act, the official is guilty of extortion (emphasis added).
We have previously upheld the use of this instruction
against a challenge that it failed to distinguish between lawful
payments and Hobbs Act extortion and seriously impaired the
ability of the accused to present their defense.5 We find no
error, plain or otherwise, in this instruction, which
sufficiently conveyed the quid pro quo requirement.6
5 United States v. Box, 50 F.3d 345, 355 (5th Cir. 1995).
6 See United States v. Tomblin, 46 F.3d 1368, 1380 & n.16 (5th Cir. 1995) (finding similar jury instruction adequate to convey quid pro quo requirement in bribery case).
4 B
Butler next claims that the audio tapes were inadmissible as
not properly authenticated because a chain of custody was not
established for the time period between the taping and
authentication of the tapes by Youngblood. Butler objected to
the admission of the tapes at trial, and we review the district
court's decision to admit the audio tapes for abuse of
discretion.7
There is no chain of custody requirement for the admission
of audio tapes in this circuit and under the Federal Rules of
Evidence authentication is satisfactory when there is "evidence
sufficient to support a finding that the matter in question is
what the proponent claims."8 Participants to the conversation
can authenticate tapes if they testify that the tapes are
accurate representations of the conversations recorded.9
In this case Youngblood testified as to the means of
recording, the accuracy of the recording, and the identity of the
participants of the conversation (himself and Butler).10 Butler
7 United States v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001). 8 Fed R. Evid. 901(a).
9 United States v. Lance, 853 F.2d 1177, 1181-82 (5th Cir. 1988) (holding tapes properly authenticated where "law enforcement agents who participated in the taped conversations testified that, according to their memories, the audio and video tapes contained accurate recordings of the conversations that occurred"). 10 Youngblood did admit, however, that he did not control the activation and deactivation of the recording device.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60426
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY BUTLER
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Mississippi (00-CR-167)
December 6, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Stanley Butler appeals his conviction and sentence for
extortion in violation of the Hobbs Act, 18 U.S.C. § 1951(a). We
reject all of his arguments and affirm both his conviction and
sentence.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I
A police informant, Russell Davis, approached the FBI in
Jackson, Mississippi with information about corrupt police
officers. Davis began undercover work for the FBI posing as a
drug dealer looking for police protection for his criminal
operations. He began paying police officer Ronald Youngblood to
provide such protection. Youngblood, when confronted by the FBI
with the evidence against him, agreed to cooperate with the
investigation.
Youngblood led the FBI to another police officer, Stanley
Butler. Youngblood had previously had discussions with Butler
about providing protection for Davis. Now cooperating with the
FBI, Youngblood had further discussions with Butler during which
Butler agreed to provide protection for Davis' drug operation.
Youngblood gave Butler $200 on two separate occasions in exchange
for this commitment. Youngblood wore an audio recording device
for some of these conversations and was able to record five of
them. After recording these conversations, Youngblood reviewed
the tapes and transcripts and signed and dated them.
Butler was convicted after a jury trial of extortion under
color of official right in violation of 18 U.S.C. § 1951(a). He
was sentenced to 12 months of imprisonment.
2 II
A
Butler first argues that the trial court's failure to
instruct the jury that it must find the quid pro quo element of
extortion beyond a reasonable doubt is reversible error.1 Since
Butler did not challenge the instructions at trial, our review is
for plain error only.2 "The Court of Appeals should correct a
plain forfeited error affecting substantial rights if the error
seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings."3
The trial court used the Fifth Circuit Pattern Jury
Instruction on Hobbs Act extortion.4 The jury was instructed
that in order to convict, they must find that the government
proved "the following three essential elements beyond a
reasonable doubt: First: That the defendant wrongfully obtained
property from another with that person's consent; Second: That
the defendant did so under color of official right; and Third:
1 We have not held, and the Government does not concede, that quid pro quo is an element of an offense under § 1951 when the offense does not involve campaign contributions to elected officials. Under those circumstances, the Supreme Court has found that quid pro quo is an element of the offense. See McCormick v. United States, 500 U.S. 257, 273, 274 (1991). However, proof of a quid pro quo is especially necessary in the campaign contribution context, because otherwise all campaign contributions could conceivably violate the Hobbs Act. Id. We assume, without deciding, that quid pro quo is an element of the offense charged here.
2 United States v. Lankford, 196 F.3d 563, 575 (5th Cir. 1999).
3 United States v. Olano, 507 U.S. 725, 736 (1993). 4 Fifth Circuit Pattern Jury Instruction 2.74 (1998).
3 That the defendant's conduct interfered with interstate
commerce." While the court did not explicitly provide that quid
pro quo was an element of the offense, the court went on to
further define each of these "three essential elements,"
including this instruction:
Wrongfully obtaining property under color of official right is the taking or attempted taking by a public officer of property not due to him or his office, whether or not the public official employed force, threats, or fear. In other words, the wrongful use of otherwise valid official power may convert dutiful action into extortion.
If a public official accepts or demands property in return for promised performance or nonperformance of an official act, the official is guilty of extortion (emphasis added).
We have previously upheld the use of this instruction
against a challenge that it failed to distinguish between lawful
payments and Hobbs Act extortion and seriously impaired the
ability of the accused to present their defense.5 We find no
error, plain or otherwise, in this instruction, which
sufficiently conveyed the quid pro quo requirement.6
5 United States v. Box, 50 F.3d 345, 355 (5th Cir. 1995).
6 See United States v. Tomblin, 46 F.3d 1368, 1380 & n.16 (5th Cir. 1995) (finding similar jury instruction adequate to convey quid pro quo requirement in bribery case).
4 B
Butler next claims that the audio tapes were inadmissible as
not properly authenticated because a chain of custody was not
established for the time period between the taping and
authentication of the tapes by Youngblood. Butler objected to
the admission of the tapes at trial, and we review the district
court's decision to admit the audio tapes for abuse of
discretion.7
There is no chain of custody requirement for the admission
of audio tapes in this circuit and under the Federal Rules of
Evidence authentication is satisfactory when there is "evidence
sufficient to support a finding that the matter in question is
what the proponent claims."8 Participants to the conversation
can authenticate tapes if they testify that the tapes are
accurate representations of the conversations recorded.9
In this case Youngblood testified as to the means of
recording, the accuracy of the recording, and the identity of the
participants of the conversation (himself and Butler).10 Butler
7 United States v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001). 8 Fed R. Evid. 901(a).
9 United States v. Lance, 853 F.2d 1177, 1181-82 (5th Cir. 1988) (holding tapes properly authenticated where "law enforcement agents who participated in the taped conversations testified that, according to their memories, the audio and video tapes contained accurate recordings of the conversations that occurred"). 10 Youngblood did admit, however, that he did not control the activation and deactivation of the recording device.
5 testified that the tapes were not fully accurate reproductions
of the conversations. However, "[w]e do not require district
courts to find that authenticity is conclusively established
before allowing the admission of disputed evidence."11 We
therefore find no abuse of discretion in the admission of the
audio tapes.
C
Finally Butler challenges his sentence, arguing that the
trial court erred in punishing him for exercising his right to
trial by sentencing him to the maximum term of imprisonment
within the range specified by the guidelines. "Review of
sentences imposed under the guidelines is limited to a
determination whether the sentence was imposed in violation of
law, as a result of an incorrect application of the sentencing
guidelines, or was outside of the applicable guideline range and
was unreasonable."12 As Butler's sentence was within the
guideline range and the application of the guidelines is not here
in dispute, we need ask only whether the sentence imposed was in
violation of law.
At sentencing Butler objected to his apparent unfair
sentencing when compared to another police officer, Nathan
11 Baulch v. Johns, 70 F.3d 813, 816 (5th Cir. 1995) (citing Lance, 853 F.3d at 1181). 12 United States v. Matovsky, 935 F.2d 719, 721 (5th Cir. 1991).
6 Thomas, who had committed similar offenses but had plead guilty
and argued that he should not be penalized for exercising his
right to a trial. The Government argues that since Butler did
not object to the actual sentence our review is for plain error.
Assuming arguendo that the imposition of the maximum
allowable sentence because of a lack of cooperation and refusal
to accept responsibility is in violation of law, we would
nevertheless affirm Butler's sentence. The trial court gave
ample reasons for the sentence wholly apart from Butler's refusal
to accept responsibility (which was discussed only as one
distinction between Butler and Thomas).13 The guidelines provide
that the trial court can "consider, without limitation, any
information concerning the background, character and conduct of
the defendant, unless otherwise prohibited by law."14
Furthermore, "when the spread of an applicable Guideline range is
less than 24 months, the district court is not required to state
13 The trial court stated, upon sentencing, that:
It's outrageous for any police officer to sully the record of the police department in his town. The very basis of our society are laws, and the enforcers of those laws ought to be diligent in obeying those laws. You have not been and you are suffering the consequences.
****
You have let yourself down. You have let your family down. You have let your parents down who raised you to be the kind of man that you were before you engaged in this. But most importantly you have let your city down. I can't do anything under these circumstances other than sentence you to the maximum available under the guidelines (emphasis added).
14 U.S.S.G. § 1B1.4.
7 its reasons for imposing a sentence at a particular point within
the applicable range."15 Accordingly we find no error, plain or
otherwise.
III
For the foregoing reasons, Butler's conviction and sentence
are AFFIRMED.
15 Matovsky, 935 F.2d at 721 (quoting United States v. Richardson, 925 F.2d 112, 117 (5th Cir. 1991)).