United States v. Thompson

Case: 10-30671 Document: 00511539159 Page: 1 Date Filed: 07/13/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 13, 2011

No. 10-30671 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

MICHAEL L. THOMPSON

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Louisiana

Before JONES, Chief Judge, and BARKSDALE and GRAVES, Circuit Judges.

EDITH H. JONES, Chief Judge:

Appellant Michael Thompson was convicted of extortion in violation of the

Hobbs Act, 18 U.S.C. § 1951, and sentenced to 18 months imprisonment. He

appeals this conviction, raising two issues: first, that the proof presented at trial

constituted a constructive amendment of the government’s indictment, in

violation of the Fifth Amendment; and, second, that the evidence was

insufficient to show that Thompson obtained property within the meaning of the

Hobbs Act. Finding these arguments meritless, we AFFIRM.

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I. Background

Appellant Michael Thompson (“Thompson”) was the Executive Director of

the Poverty Point Reservoir District (“PPRD”), a political subdivision of

Louisiana whose purpose is to develop the natural resources of the district. Joe

Cleveland (“Cleveland”) was an independent contractor who performed

maintenance services for PPRD and was compensated on an hourly basis.

Cleveland’s wife, Kathy Cleveland, worked as Thompson’s administrative

assistant, which involved processing her husband’s time sheets and submitting

them to PPRD for payment. In response to accusations that Kathy Cleveland

was embezzling PPRD funds, she and her husband entered into agreements with

the government to testify against Thompson. In particular, the Clevelands

would testify that Thompson orchestrated a scheme in which Cleveland was paid

nearly $8,000 for work performed for Thompson personally over the course of

five years. Using his position as Executive Director of PPRD, Thompson coerced

Cleveland into performing a myriad of jobs at Thompson’s home and farm, while

paying Cleveland with PPRD funds.

The government obtained a single-count indictment against Thompson

charging a violation of the Hobbs Act, 18 U.S.C. § 1951. In the indictment, the

government alleged, in pertinent part, that

the Defendant, MICHAEL L. THOMPSON, did knowingly, willfully

and unlawfully obstruct, delay, affect and attempt to obstruct, delay

and affect commerce and the movement of articles and commodities

in commerce by extortion . . . , in that Defendant MICHAEL L.

THOMPSON unlawfully obtained property, that is, funds of the

Poverty Point Reservoir District, not due him or his office with

consent, said consent being induced and obtained under color of

official right, all in violation of [18 U.S.C. §1951].

Through pretrial discovery and a bill of particulars produced by the government,

Thompson eventually learned that the government’s theory rested on

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Thompson’s payment of PPRD funds to a PPRD employee–later disclosed to be

Cleveland–for work performed for Thompson personally.

On March 16, 2009, Thompson moved to dismiss the indictment,1 arguing

that the government failed to charge a Hobbs Act violation, since Cleveland was

not deprived of property within the meaning of the Hobbs Act. Thompson

contended that since Cleveland was compensated for his labor, he was not

deprived of any property. The district court ultimately denied the motion, but

sua sponte raised the issue of whether the government’s presentation of

evidence, as set forth in the bill of particulars and pleadings, would constitute

a constructive amendment of the indictment. After hearing oral argument on

the matter, the district court concluded that a constructive amendment would

not result from the presentation of this theory to the jury and the case thus

proceeded to trial. Thompson moved for judgment of acquittal at the close of the

government’s case and again at the close of the evidence. He also reurged his

second motion to dismiss. The district court denied these motions.

On January 20, 2010, the jury returned a verdict of guilty. The district

court subsequently sentenced Thompson to 18 months imprisonment and

ordered him to pay $8,000 in restitution. Thompson now appeals. Finding his

arguments to be without merit, we AFFIRM.

II. Standards of Review

We review Thompson’s claim of constructive amendment de novo. United

States v. McMillan, 600 F.3d 434, 450 (5th Cir. 2010). In reviewing Thompson’s

challenge to the sufficiency of the evidence, we view the evidence in the light

most favorable to the jury's verdict and affirm if a rational trier of fact could

have found that the government proved all essential elements of a crime beyond

a reasonable doubt. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999).

1

This was the second of two motions to dismiss. The content of the first is not

important for this appeal.

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Credibility determinations and reasonable inferences are resolved in favor of the

jury’s verdict. Id.

III. Discussion

Thompson raises two issues on appeal: (1) that his indictment was

constructively amended in violation of the Fifth Amendment; and (2) that the

government failed to present evidence that Thompson obtained property within

the meaning of the Hobbs Act. We address these issues in turn.

A.

The Fifth Amendment provides that “[n]o person shall be held to answer

for a capital, or otherwise infamous crime, unless on . . . indictment of a Grand

Jury.” U.S. CONST. amend. V. The Supreme Court has held that this provision

guarantees criminal defendants a right to be tried solely on allegations in an

indictment returned by the grand jury. Stirone v. United States, 361 U.S. 212,

217, 80 S. Ct. 270, 273 (1960); see also United States v. Threadgill, 172 F.3d 357,

370 (5th Cir. 1999). Consequently, once an indictment issues, only the grand

jury may broaden or alter it. See United States v. Broadnax, 601 F.3d 336, 340

(5th Cir. 2010). This rule is designed to safeguard a defendant’s “right to be

tried upon the charge in the indictment as found by the grand jury.” United

States v. Adams, 778 F.2d 1117, 1123 (5th Cir. 1985)(quoting Gaither v. United

States, 413 F.2d 1061, 1071-72 (D.C. Cir. 1969)).

Not all variations between allegation and proof, however, rise to the level

of a constructive amendment and thus violate this rule. See United States v.

Millet, 123 F.3d 268, 272 (5th Cir. 1997). “A constructive amendment occurs

when it permits the defendant to be convicted upon a factual basis that

effectively modifies an essential element of the offense charged or permits the

government to convict the defendant on a materially different theory or set of

facts than that with which she was charged.” McMillan, 600 F.3d at 451

(quotation marks and citation omitted). Where this occurs, a finding of prejudice

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is not necessary to establish a constitutional violation. See United States v.

Chambers, 408 F.3d 237, 241 (5th Cir. 2005) (noting that constructive

amendments of the indictment “are reversible per se”) (quoting United States v.

Adams, 778 F.2d at 1123)). If, however, the variance between allegations in the

indictment and proof at trial does not rise to the level of constructive

amendment, our review is for harmless error. See United States v. Nunez,

180 F.3d 227, 231 (5th Cir. 1999).

In this case, Thompson’s counsel conceded at oral argument that if a mere

variance occurred, our inquiry is complete, since the defense suffered no

prejudice as a result. Thus, we need only determine on what side of the

constructive amendment divide this case falls.

The government’s single-count indictment charged Thompson with

violating the Hobbs Act. In order to establish such a violation, the government

was required to allege and prove that Thompson “obstruct[ed], delay[ed], or

affect[ed] commerce or the movement of any article or commodity in commerce”

by means of “extortion.” 18 U.S.C. § 1951. The Supreme Court has clarified that

there are two “essential elements” to this provision: (1) interference with

commerce, and (2) extortion. See Stirone, 361 U.S. at 218, 80 S. Ct. at 274;

United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir. 1997). Since the

“interference with commerce” element is not at issue on appeal, the remaining

question is whether the government’s proof at trial modified the “essential

element” of extortion alleged in the indictment, such that a constructive

amended resulted.

The Hobbs Act defines “extortion” as “the obtaining of property from

another, with his consent, induced . . . under color of official right.” 18 U.S.C.

§ 1951(b)(2). The indictment is quoted in pertinent part above. Thompson

argues that the indictment identifies PPRD as the entity deprived of its property

and the entity whose consent was induced or obtained under color of official

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right. Thompson asserts that, at trial, no such theory of extortion was

presented. Rather, the theory presented was that it was Cleveland–not

PPRD–who was deprived of property by consent and thus extorted within the

meaning of the statute.

While Thompson correctly identifies the government’s trial theory, we

disagree it is necessarily inconsistent with theory of the case as set forth in the

indictment. Admittedly, the indictment is ambiguous and thus may be subject

to competing interpretations. But to the extent the drafting of the indictment

was unclear–as to whose consent was obtained and the modus operandi of the

extortion–the government resolved any ambiguities during pretrial discovery

and through clarifications in its bill of particulars. As a result, by the time trial

began, the government’s theory was crystalized.

Thompson asserts that the indictment alleges that PPRD was the party

extorted, since the only party deprived of property in the indictment was PPRD.

The parties agree that this allegation alone would not support a claim of

extortion. The government explains that it was nonetheless an essential part of

its Hobbs Act claim, since interference with PPRD funds was the jurisdictional

hook necessary to satisfy the interstate element of the statute. See Stirone,

361 U.S. at 218, 80 S. Ct. at 274. To satisfy the element of extortion, however,

the government admits it needed to prove an additional deprivation of property

that would qualify as extortion.

At trial, the government adduced evidence that Thompson obtained

Cleveland’s services, with Cleveland’s consent, under color of official right. As

discussed below, this evidence suffices to prove extortion under the Hobbs Act.

The only question is whether this evidence constructively amended the

indictment. We hold that it does not.

As discussed by the parties, there were two deprivations of property

occasioned by Thompson’s scheme: use of PPRD funds and appropriation of

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Cleveland’s labor. While these two deprivations satisfied different elements

under the Hobbs Act, both were undoubtedly part of a single extortionate

scheme. And the relationship between them is clear: while the indictment

alleged that PPRD was deprived of property, the evidence relating to Cleveland

explained the modus operandi by which this was achieved. Both parties were

ultimately victims of the same scheme.

Of course, the indictment in this case was not a model of clarity on this

point. Nevertheless, taking together the allegations in the indictment, the

subsequent clarifications in the bill of particulars, and the evidence adduced at

trial, we are satisfied that the government has pursued a single, consistent

theory throughout this prosecution. The allegations regarding Cleveland did not

amend or alter the indictment, but rather “explained the allegations of the

indictment.” United States v. Lisinksi, 728 F.2d 887, 893 (7th Cir. 1984). We are

thus convinced that the jury was not permitted to convict Thompson “upon a

factual basis that effectively modifie[d] an essential element of the offense

charged” or “on a materially different theory or set of facts than that with which

[he] was charged.” United States v. Reasor, 418 F.3d 466, 475 (5th Cir. 2005).

The seminal Supreme Court decision on constructive amendment does not

compel a different outcome. See Stirone, 361 U.S. 212, 80 S. Ct. 270. In Stirone,

the indictment charged defendant with unlawfully interfering with interstate

commerce in violation of the Hobbs Act. Id. at 213-14, 80 S. Ct. at 271. In

particular, defendant had used his position in a labor union to threaten

interference with the victim’s contract to supply ready-mixed concrete for the

erection of a steel-processing plant. Id. The government charged that

defendant’s conduct interfered with the interstate shipment of sand, which was

brought in from other states to be used in making the concrete. Id. At trial,

however, the government presented evidence that defendant interfered with

interstate commerce not only in sand, but also in prospective steel shipments

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from the steel plant under construction. Id. The Court held that the

government’s presentation of this theory–along with instructions permitting the

jury to convict based on it–effected a constructive amendment of the indictment.

Id. at 215, 80 S. Ct. at 272. The Court reasoned that the evidence regarding

interference with prospective steel shipments was an independent basis on

which the government urged the jury to convict, but which was not charged in

the indictment. Id. at 218-19, 80 S. Ct. at 274. The government had alleged

interference with sand in order to satisfy the interstate commerce element of a

Hobbs Act violation. To allow conviction based on interference with an entirely

separate aspect of interstate commerce would therefore violate the Fifth

Amendment. Accordingly, defendant’s conviction was reversed. Id. at 219,

80 S. Ct. at 274.

In this case, the government did not maintain two alternative

theories–only one of which was charged–and urge the jury to convict upon either

of them. Rather, the government presented a single, consistent theory of

conviction throughout: from his position as Executive Director of PPRD,

Thompson obtained Cleveland’s labor with his consent and under color of right,

while authorizing payment of PPRD funds to Cleveland in exchange. While

Cleveland’s labor is the only property relevant to the element of extortion,

Thompson’s appropriation of both forms of property was part of a single scheme.

Accordingly, there is no fatal variance between the indictment and the proof

presented at trial.

B.

Thompson argues alternatively that the government failed to prove that

Cleveland was deprived of property within the meaning of the Hobbs Act. As

noted above, the Hobbs Act defines “extortion” to require the “obtaining of

property from another . . . .” 18 U.S.C. § 1951(b)(2). Since “[t]he concept of

property under the Hobbs Act has not been limited to physical or tangible

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things,” United States v. Stephens, 964 F.2d 424, 433 n.20 (5th Cir. 1992); United

States v. Nadaline, 471 F.2d 340, 344 (5th Cir. 1972), the labor provided by

Cleveland qualifies as “property” within the meaning of the Hobbs Act. See

United States v. Delano, 55 F.3d 720, 731 (2d Cir. 1995) (noting that public

official had received “payment” in the form of tree removal services).

Nevertheless, Thompson argues that Cleveland was not “deprived” of property,

since he was compensated for the labor he performed. In other words,

Cleveland’s compensation precludes a finding that he was deprived of property.

Thompson acknowledges that a number of Hobbs Act cases establish a

common pattern in which the victim of extortion is deprived of property, but

obtains some sort of benefit in exchange. See, e.g., id. (tree removal company

removed trees with the understanding that the official would assign jobs “which

the company ordinarily would not have received”); Stephens, 964 F.2d at 431

(extorted victim paid defendant based on her belief that defendant could “take

care” of the legal charges against her). Thompson asserts, however, that the

benefit in such cases is “incidental” and thus different in kind from this case,

where Cleveland billed PPRD for the work he performed and was “paid in full.”

Thompson appears to concede that the existence of a quid pro quo arrangement

does not, by itself, preclude a finding of extortion. Rather, he contends that the

present case is “fundamentally different” since the exchange here involved full

compensation for Cleveland’s labor. This proffered distinction–between

“incidental” benefits and “full” compensation–is not contemplated by the text of

the statute and lacks support in reason. Hobbs Act liability should not turn on

the value of the deal obtained by extorted victims.

A plain reading of the Hobbs Act suggests that extortion is complete once

property is obtained by the defendant. See 18 U.S.C. § 1951(b)(2). As the

Supreme Court has stated, extortion “is completed at the time when the public

official receives a payment in return for his agreement to perform specific official

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acts.” Evans v. United States, 504 U.S. 255, 268, 112 S. Ct. 1881, 1889 (1992).

Whether or not the quid pro quo is ultimately fulfilled is not relevant to a finding

of extortion. Cf. id. (“[F]ulfillment of the quid pro quo is not an element of the

offense.”). The fact that Cleveland was subsequently paid for his labor does not

preclude a finding that Thompson deprived Cleveland of property. See United

States v. French, 628 F.2d 1069, 1074 (8th Cir. 1980) (noting that extortionate

conduct is “no less extortion because the ‘victim’ may in some sense receive an

economic benefit . . . .”); Delano, 55 F.3d at 731.

Equally unavailing is Thompson’s reliance on Scheidler v. National

Organization For Women, Inc., 537 U.S. 393, 404, 123 S. Ct. 1057, 1065 (2003).

In Scheidler, the Court held that defendants had not committed extortion under

the Hobbs Act by interfering with women’s access to abortion clinics, since

defendants had not “obtained” any property in so doing. Id. at 404-05, 123 S. Ct.

at 1065-66. The Court acknowledged that while defendants “may have deprived

or sought to deprive [abortion clinics] of their alleged property right of exclusive

control of their business assets,” the defendants had not acquired any such

property. Id. at 405, 123 S. Ct. at 1066.

While it is true that interference with a property or liberty interest is not

sufficient to create Hobbs Act liability, Scheidler fails to support Thompson’s

argument. Scheidler clarified that the “obtaining” requirement of extortion

under the Hobbs Act “require[s] not only the deprivation but also the acquisition

of property.” Id. at 404, 123 S. Ct. at 1065. This explains why the protesters’

interference with abortion clinics and their patients was not sufficient to create

Hobbs Act liability, particularly because they did not “acquire” any property in

so doing. The present case, however, is distinguishable, since Thompson clearly

acquired property through his scheme. Cleveland performed a host of tasks at

Thompson’s home and farm, which inured to Thompson’s personal benefit.

Thus, Thompson did not merely interfere with Cleveland’s liberty interests, but

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actually obtained the direct benefits of his labor. Scheidler thus provides no

support for Thompson’s argument. See United States v. Gotti, 459 F.3d 296, 300

(2d Cir. 2006) (noting that Scheidler–“far from holding that a Hobbs Act

extortion could not be premised on the extortion of intangible property

rights–simply clarified that for Hobbs Act liability to attach, there must be a

showing that the defendant did not merely seek to deprive the victim of the

property right in question, but also sought to obtain that right for himself”).

Consequently, we hold that the compensation paid to Cleveland for his

labor does not preclude a finding that Thompson “obtained” property within the

meaning of the Hobbs Act. The evidence was sufficient to support the jury’s

verdict.

IV. Conclusion

For these reasons, Thompson’s conviction is AFFIRMED.

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