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Texas Jail Director's Conviction Upheld

The Fifth Circuit Court of Appeals affirmed the convictions of two
defendants charged with extortion and conspiracy to extort under the Hobbs
Act, 18 U.S.C.§ 2 and 1951. The defendants were Jose Marcelino Rubio, Sr.,
the father of the District Attorney for Texas' Web County and, at the time
of the conspiracy, the Director of the Web County Detention Center; and
Georgio Jose Castaneda, owner of Century Bail Bonds. The indictment charged
the defendants with paying Assistant District Attorneys (ADAs) and
investigators to reduce or dismiss charges for their client arrestees, who
paid for this "service." A jury convicted the defendants on all counts.
On appeal, Rubio argued that the district court had constructively amended
the indictment by instructing the jury that jailers are public officers
under the Hobbs Act, which requires showing the defendant was a public
official, held himself out as a public official, or that he paid a public
official to fix the arrestees' cases. The Fifth Circuit held the ADAs and
investigators, who were charged with acting as both principles and
accomplices, and who acted to reduce or dismiss charges, were the central
"official" action that allowed the scheme to succeed. Therefore, the
government need not allege any other action and the instruction was not an
amendment to the indictment.

Rubio argued a jailer was not a public official under Texas law. However,
the Court held the Hobbs Act preserved the common law definition for
extortion. Jailers have been long recognized as public officials subject to
extortion statutes under common law.

Both defendants challenged the district court's ruling that, as applied to
their cases, the Hobbs Act was within Congress' power to regulate commerce.
They argued there was insufficient evidence of a relationship to interstate
commerce to support their convictions under the Hobbs Act. The Fifth
Circuit found a number of the counts related to arrestees faced with drug
charges, which was insufficient to create an effect on interstate commerce
because drugs are traded on an international market. Other counts involved
extortion of money to provide favorable dispositions of DWI offenses. The
Court held the requisite nexus to commerce existed where extortion charges
under the Hobbs Act involved the failure to prosecute drunk drivers, for
that non-enforcement resulted in more alcohol-related accidents and less
highway safety, which affected commerce. The defendants' convictions were
affirmed. See: United States v. Rubio, 321 F.3d 517 (5th Cir. 2003).

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Related legal case

United States v. Rubio

[38] In this case, as in Wright, the government's expert testified that drinking and driving is likely the major factor in highway accidents. He stated that the high risks can be reduced by treating the drinking driver or by suspending or revoking driving privileges but that failure to prosecute drunk drivers encourages more drunk driving and jeopardizes highway safety.

[39] Though United States v. Wright was issued prior to the Supreme Court's opinions in Lopez, Jones, and Morrison, we agree with the Eleventh Circuit's post-Lopez decision in United States v. Castleberry, 116 F.3d 1384 (11th Cir. 1997), that there is a sufficient nexus to commerce to permit jurisdiction under the Hobbs Act.

[40] Based on the forgoing, we are satisfied that as applied to each of the counts against Rubio and Castaneda the Hobbs Act does not exceed Congress's power to regulate commerce.

[41] VI.

[42] Castaneda also challenges the admission of the expert testimony of Dr. Robert Voz, regarding the effect of weak prosecution or non-prosecution of DWIs on interstate commerce on the basis that the testimony was unreliable and irrelevant under Daubert v. Merrel-Dow Pharms., 509 U.S. 579 (1993) and, alternatively, that it was unfairly prejudicial under Federal Rule of Evidence 403. The substance of Castaneda's argument is that Dr. Voz was not qualified to testify regarding the impact of drunk driving on commerce and had not conducted any studies to show whether his nationwide findings regarding DWI prosecutions hold true in Texas. We review challenges of a district court's rulings on the admissibility of evidence for an abuse of discretion. United States v. Norris, 217 F.3d 262 (5th Cir. 2000).

[43] The government produced substantial evidence of Dr. Voz's expertise on the subject of DWIs. Among his many qualifications, he is the head research scientist at the Pacific Institute, a nonprofit organization of scientists working on government funded research in areas such as public health, alcoholism, alcohol problems, and traffic safety. He has been employed with the Pacific Institute as a researcher for twenty years. Since 1982, his area of research has been drinking and driving. During his tenure with the Pacific Institute, Dr. Voz participated in studies related to the impact of failure to prosecute DWIs on law enforcement, on drivers, and on the public in general. Some of these studies have been published in journals; others are published by the government. Prior to entering the private sector, Dr. Voz worked for the Department of Transportation, National Highway Safety Administration, for thirteen years evaluating laws and federal programs relating to drinking and driving.

[44] Based on these qualifications, the district court did not abuse its discretion in concluding that Dr. Voz was qualified to testify regarding the effect of low prosecutions of DWI cases on highway safety and commerce.

[45] Castaneda also asserts that Dr. Voz's testimony was not reliable or relevant because it was based on tests conducted on a nationwide basis. Dr. Voz's research showed that when people perceive that, if arrested, they will be prosecuted and convicted for DWI, it is a general deterrent, lowering the number of people who will engage in drinking and driving. When no action is taken by law enforcement to prosecute offenders, the cycle of drinking and driving continues. Dr. Voz testified that lowered rates of prosecution of DWI cases results in more alcohol-related crashes, less highway safety, less travel, and increased traffic congestion. This testimony is relevant to the government's theory that the extortion in this case affected interstate commerce. The defendant's counsel vigorously cross examined Dr. Voz regarding his studies and their application to DWIs in Webb County, and the district court did not abuse its discretion in accepting Dr. Voz's explanation of the reliability and relevance of his tests to this case. Thus, Dr. Voz's testimony was properly admitted as reliable and relevant under Daubert v. Merrel-Dow Pharms.

[46] We also conclude that the district court did not abuse its discretion in concluding that Dr. Voz's testimony was neither unfairly prejudicial nor confusing. Thus, Castaneda's Rule 403 challenge likewise has no merit.

[47] Based on the forgoing, the district court did not abuse its discretion in admitting the testimony of Dr. Voz.

[48] VII.

[49] Castaneda also contends that the district court erred in denying his motion for severance because the complexity of the case was likely to cause jury confusion. This challenge is reviewed for an abuse of discretion. United States v. Lee, 744 F.2d 1124 (5th Cir. 1984). In order to meet this burden, "[a] defendant must show 'specific and compelling prejudice against which the district court could not provide adequate protection, and that this prejudice resulted in an unfair trial.'" United States v. Sharpe, 193 F.3d 852, 862 (5th Cir. 1999) (citing United States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994)).

[50] Castaneda asserts that the failure to sever his case resulted in jury confusion regarding what evidence was applicable to each count and to each defendant. However, the district court gave careful instructions throughout the trial, informing the jury that particular items of evidence did not necessarily implicate all defendants. In its final instruction, the court explicitly instructed the jury that they had to consider the evidence as it applied to each defendant. We are satisfied that the instructions given by the district court in this case were sufficient to cure any possible prejudice to Castaneda.

[51] Based on the foregoing, the district court did not abuse its discretion in denying Castaneda's Motion for Severance.

[52] VIII.

[53] Finally, both Rubio and Castaneda contend that the evidence was insufficient to prove that a public official was ever paid for the favorable disposition of a criminal case. In reviewing sufficiency claims, we "must determine 'whether viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001)(citations omitted). The "jury is 'free to chose among all reasonable constructions of the evidence,' and 'it is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.'" Id. Our "review is limited to whether the jury's verdict was reasonable, not whether we believe it to be correct." Id.

[54] As noted in Section II above, an element of extortion "under color of official right" is that a public official "took money or something of value not due him or his office for the performance or non-performance of an official function." United States v. Millet, 123 F.3d 268, 274 (5th Cir. 1997). As in proof of any fact, the payment to a public official may be established by either direct or circumstantial evidence. United States v. Stephens, 964 F.2d 424, 428.

[55] A.

[56] The government charged Rubio with using his influence both as a public official and as the father of the Webb County DA to extort money to fix criminal cases. For each count in the indictment, the government produced evidence showing that an arrestee paid money to Rubio. Thus, in the counts where Rubio extorted money as a public official, *fn8 the Hobbs Act's requirement that a public official is paid is satisfied. In other counts, the government produced evidence that Rubio either flashed a badge or otherwise held himself out as a public official. *fn9 In most of the counts, Rubio also paid a public official such as an ADA or investigator. *fn10 Our review of this record satisfies us that the government presented sufficient evidence to establish this element in all counts.

[57] B.

[58] Castaneda was charged only as a bail bondsman. As such, he acted exclusively in a private capacity. For each Count on which he was convicted, the government was required to prove that he acted in concert with a public official who received payment of a portion of the money Castaneda extorted from an arrestee. Our review of the record satisfied us that the government produced sufficient evidence to permit a jury to find that an official received some of the money Castaneda extorted from his clients for each count of his conviction.

[59] The most direct evidence the government produced was from the testimony of a government cooperating witness, Jesse Salas. Salas recounted numerous statements Castaneda made, describing payments he made to public officials to fix cases for his bail customers. *fn11 The government also produced documentary evidence tying Castaneda to particular ADAs and investigators who disposed of many of the cases Castaneda was paid to fix. *fn12 For each case Castaneda aided in fixing, the government produced evidence that he received a payment in addition to his bond fee and that the arrestee's case was disposed of in an unusually lenient manner considering the charges, consistently resulting in no jail time for the arrestee. Based on this evidence, we are satisfied that the government presented sufficient evidence to establish this element in all counts.

[60] IX.

[61] For the reasons stated above, Rubio's and Castaneda's convictions on all counts are AFFIRMED.

Opinion Footnotes

[62] *fn1 Mendoza and Rodriguez were also convicted; however, at the time this appeal was lodged, they had not been sentenced for their crimes. Accordingly, they have not joined Rubio and Castaneda in this appeal.

[63] *fn2 The Hobbs Act reads in pertinent part as follows: (a) whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery, extortion or attempt or conspires so to do, . . . shall be fined under this title or imprisoned not more than twenty years, or both. (b) As used in this section -- (2) The term "extortion" means the obtaining of property from another, with his consent, . . . under the color of official right. (Emphasis ours).

[64] *fn3 Paragraph 1 of Count 1 reads: 1. Jose Marcelino Rubio, Sr., was a resident of Laredo, Texas. He used his influence, as the father of the Webb County District Attorney and as a former Webb County deputy sheriff, to provide and attempt to provide dispositions of criminal cases in Webb County in exchange for money.

[65] *fn4 Count 3 reads: From in or about June 1997 through July 1997, in the Southern District of Texas ad elsewhere, and within the jurisdiction of this Court Defendants, JOSE MARCELINO RUBIO, SR. and AUGUSTIN MENDOZA, each aiding and abetting the other did knowingly, willfully and unlawfully attempt to and did obstruct, delay and affect commerce as that term is defined in Title 18, United States Code, Section 1951 (b) (3), by means of extortion in that the defendants did obtain and attempt to obtain payments of money that were not due to them or their respective office and to which they nor their respective office was entitled, in that they received approximately $1,500 to provide or attempt to provide a disposition of a Driving While Intoxicated case (hereinafter to as D.W.I.) From a criminal defendant whose consent was induced under the color of official right. In violation of Sections 1951 and 2. With the exception of details of dates, accomplices, monetary amounts received, and charges fixed, the language used in the other Substantive Counts for which Rubio was convicted is identical to this language.

[66] *fn5 See James Lindgren, Article: The Elusive Distinction between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev. 815 (1988)(detailing the history of common law of extortion) (cited with approval by this court in United States v. Tomblin, 46 F.3d 1369, 1383).

[67] *fn6 In a related argument, Castaneda challenges the jury charge regarding his conduct's affect on commerce. In the challenged charge, the district court instructed the jury on what activities constitute interstate and foreign commerce. The court then charged that the defendant's conduct need not substantially affect interstate or foreign commerce as long as the conduct would substantially affect interstate or foreign commerce if repeated many times over. We have approved of this language on a number of occasions. United States v. Jennings, 195 F.3d 795, 800; United States v. Robinson, 119 F.3d 1205 (5th Cir. 1997), cert. denied, 522 U.S. 1139, 118 S.Ct. 1104, 140 L.Ed.2d 158 (1998); United States v. Miles, 122 F.3d 235, 241 (5th Cir. 1997). Thus, Castaneda's argument is foreclosed by circuit precedent.

[68] *fn7 Though Villafranca was charged in the same indictment, he was tried separately from Castaneda and Rubio.

[69] *fn8 Counts 3, 7, 8, 9, 10, 18 charge Rubio with receiving a payment as a public official.

[70] *fn9 The government supported Counts 3, 9 and 18 with evidence that Rubio flashed a badge or referred to himself as "the law."

[71] *fn10 The government supported Counts 1, 10, and 18 with evidence showing that Rubio told people that he had to share a portion of the money extorted from the arrestees with different ADAs or investigators.

[72] *fn11 The government supported Counts 1and 11 with evidence showing that Castaneda told Salas that he had to share a portion of the money extorted from the arrestees involved with different DA's or investigators.

[73] *fn12 The government produced Rodriguez's and Mendoza's day-planners containing notations regarding the arrests relating to Counts 1, 12 and 17. With regard to Counts 1, 2, 17 and 19, the government produced disposition memos and lists prepare by Castaneda's staff directing public officials as to how the cases were to be disposed.