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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 93-1674

UNITED STATES of AMERICA,
Plaintiff-Appellee,
versus
DAVID LOWAYNE BOX,
JOHN BYRON YARBROUGH, and
LEROY EUGENE BURCH,
Defendants-
Appellants.

Appeals from the United States District Court
for the Northern District of Texas

(April 11, 1995)
Before REYNALDO G. GARZA, DEMOSS, and BENAVIDES, Circuit
Judges.
BENAVIDES, Circuit Judge:
David Lowayne Box, a bail bondsman, Leroy Eugene Burch, former
Sheriff of Wise County, and John Byron Yarbrough, former Chief
Deputy Sheriff, were convicted of one count of conspiracy to
interfere with interstate commerce by extortion and various
substantive counts of extortion, all in violation of the Hobbs Act.
The offense conduct included a scheme designed to extort money
(through bonds and fines) from travelers arrested at a roadside
park in exchange for promises that the charges, usually public
lewdness or indecent exposure, would be dropped or reduced. The
roadside park was known to be the location of a significant amount

of homosexual activity. The offense conduct also included a scheme
to extort money from drug dealers in the guise of a legitimate
forfeiture proceeding. Additionally, Box was convicted of two
counts of making false tax returns.
Box, Yarbrough, and Burch challenge their convictions,
claiming various grounds for reversal. Box also challenges the
court's application of the sentencing guidelines. We find that
three of the substantive convictions for extortion involving the
arrests at the roadside park must be reversed because there was
insufficient evidence to show that the offense conduct affected
interstate commerce. Otherwise, we affirm the conspiracy
convictions and remaining substantive counts. Additionally, we
find that the district court erred in applying the vulnerable
victim enhancement to Box's sentence, and thus, vacate and remand
his sentence for further proceedings.
I.
PROCEDURAL HISTORY
A grand jury charged Box, Yarbrough, and Burch in an eleven-
count indictment as follows:1 count 1 charged all three appellants
with conspiracy to interfere with interstate commerce by extortion
in violation of 18 U.S.C. § 1951 (the Hobbs Act); counts 2 through
9 charged all three appellants with various substantive violations
of 18 U.S.C. § 1951, specifically, interference with commerce by
1 A fourth defendant, James Howard Conner, Jr., was charged
in Count 1 (conspiracy) and Count 8 (extortion count involving
drug forfeiture). The jury acquitted Conner of both counts.
-2-

extortion;2 and counts 10 and 11 charged Box with making and
subscribing to false individual income tax returns for 1987 and
1988 in violation of 26 U.S.C. § 7206(1).
The three appellants were tried together before a jury. The
district court directed a verdict of acquittal on count 6 as to all
the defendants.3 Box was convicted of the conspiracy count, seven
counts of extortion (counts 2, 3, 4, 5, 7, 8, and 9) and two counts
of filing a false income tax return (counts 10 and 11). Yarbrough
was found guilty of the conspiracy count and six counts of
extortion (counts 2, 3, 4, 5, 7, and 8). Yarbrough was acquitted
of the extortion offense in count 9. Burch was convicted of the
conspiracy count and one count of extortion in count 8. Burch was
acquitted of the remaining six counts of extortion, all of which
involved the arrests at the roadside park.
II.
SUFFICIENCY OF EVIDENCE
The appellants contend that their conspiracy and substantive
convictions for extortion in violation of the Hobbs Act (18 U.S.C.
§ 1951) were not supported by sufficient evidence. Section 1951(a)
provides that:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires to do so, or commits or threatens
physical violence to any person or property in
2 Counts two through seven and count nine involved the
alleged extortion of certain individuals arrested at a roadside
park. Count eight involved the alleged extortion of certain drug
dealers disguised as a drug forfeiture.
3 The named victim in count six was deceased at the time of
trial.
-3-

furtherance of a plan or purpose to do anything in
violation of this section shall be fined not more than
$10,000 or imprisoned not more than twenty years, or
both.
The statute defines "extortion" as "the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official
right." Section 1951(b)(2).
We review a challenge to the sufficiency of the evidence to
determine whether a reasonable trier of fact could have found that
the evidence established the defendant's guilt beyond a reasonable
doubt. United States v. Stephens, 964 F.2d 424, 427 & n.8 (5th
Cir. 1992). "A conviction under the Hobbs Act may be sustained by
a finding that a public official has taken a fee, unlawfully, under
color of his public office, in return for performance or
nonperformance of an official act." United States v. Wright, 797
F.2d 245, 250 (5th Cir. 1986), cert. denied, 481 U.S. 1013, 107
S.Ct. 1887 (1987). "To convict for criminal conspiracy under 18
U.S.C. § 1951, the jury must find an agreement between two or more
persons to commit a crime, and an overt act by one of the
conspirators to further the conspiracy." Stephens, 964 F.2d at
427.
A.
INSUFFICIENT EVIDENCE TO SHOW MONEY NOT DUE THE OFFICE
The appellants argue that there was insufficient evidence to
show that the $20,000 in forfeited drug proceeds was property not
due the office. The pertinent part of the Hobbs Act "requires of
the public official that he obtain `property from another, with his
consent, . . . under color of official right.'" Evans v. United
-4-

States, 504 U.S. 255, 112 S.Ct. 1881, 1888 (1992) (quoting § 1951)
(ellipsis in opinion). Construing that statute, the Supreme Court
held "that the Government need only show that a public official has
obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts."4
The appellants claim that the forfeiture was legal under Texas
law, and therefore, the government failed to prove that the
Sheriff's Department was not entitled to the money. The
government, relying on McCormick v. United States, 500 U.S. 257,
111 S.Ct. 1807 (1991), responds that whether the forfeiture was
legal is not relevant. In McCormick, the defendant, an official,
had been convicted of extortion under the Hobbs Act. He claimed
that the monies he received were legitimate campaign contributions.
The Court of Appeals had affirmed, rejecting McCormick's contention
that conviction of an official under the Hobbs Act always requires
proof of a quid pro quo. That court concluded that the statute did
not require such proof when the parties had never intended the
money to be legitimate campaign contributions. The Supreme Court
reversed, holding that a quid pro quo is necessary for conviction
under the Hobbs Act when an official receives a campaign
contribution, regardless whether it is a legitimate campaign
contribution.
4 "[E]xtortion under color of official right means the
wrongful taking by a public officer of money or property not due
to the officer or the office." Stephens, 964 F.2d at 429
(internal quotation marks and citations omitted).
-5-

Accordingly, in the case at bar, the government argues by
analogy that simply because the transaction was "camouflaged" as a
legitimate forfeiture does not immunize the defendants from
prosecution. The forfeiture, the government argues, was
orchestrated to hide its true character as an illegal quid pro quo
transaction constituting extortion. On the facts of this case, we
find the government's position persuasive.
Viewed in the light most favorable to the government, the
evidence showed that, on April 18, 1988, officers of the Wise
County Sheriff's Department executed a search warrant at a remotely
located house used for the manufacture of amphetamines. Phillip
Cox, Derrick Ives, and Paul Gatlin were arrested at the scene.
When Cox arrived at the jail, he observed Box standing at a desk.
Box took Cox aside and advised that if Cox used him as a bail
bondsman, he would inform Cox of some loopholes in the case that
would help Cox to obtain dismissal of the charges. At that time,
Box did not give any specifics as to the "loopholes." The loophole
was a defective search warrant. Deputy Yarbrough had prepared the
search warrant which was defective due to inaccurate directions to
the house.5
Cox paid Box to obtain bonds for the three men. Box also
charged $6,000 in "private investigator's fees" to obtain the
information regarding the "loopholes." Subsequently, Box and Cox
met several times and discussed a $20,000 "pay off deal" that would
5 The government argued that Yarbrough had purposely
drafted a defective search warrant.
-6-

result in the dismissal of the charges. Cox, however, was
skeptical and concerned that Box was trying to "scam" him.6 Cox
wanted to meet with someone who could verify their agreement, and
Box told him that he could talk to the Sheriff.
While on his way to meet with Box and the Sheriff, Cox and his
companion Kit McManus had car trouble. Cox phoned Box and told him
where the car had stopped. Box and the Sheriff arrived at the
scene shortly thereafter. Box assured Cox that he did not need to
worry because it was not "any big deal." He further stated that
the Sheriff had more to lose than Cox did. Cox then entered the
vehicle with the Sheriff. The Sheriff also assured Cox that he had
nothing to worry about and that "it wasn't the first time that this
had happened." Cox told the Sheriff that was enough verification
for him. Cox testified that the Sheriff "seemed like the type of
person that would be able to do something like that."
Subsequent to that meeting, Box instructed Cox to choose
either Kit McManus or Charles Duckworth (two other individuals who
had been involved with Cox in the manufacture of amphetamine) to
surrender himself to the Wise County Sheriff's Department with
$20,000 on hand for a "forfeiture." It was also determined that
the person who surrendered himself would pay a bond fee of $15,000
and the charges would be dismissed at that time. Cox "chose"
McManus.
6 Cox testified that when he gave Box $15,000, Box gave him
a receipt for only $5,000.
-7-

In a rental car, Cox and McManus drove to Box's bail bond
office with $35,000 in cash ($20,000 for the "forfeiture" and
$15,000 for the bond fee). After Box counted the money, Box and
McManus left to go to the jail while Cox remained at the bail bond
office. Cox became more apprehensive when he saw a police car, but
the officer drove away without coming inside. McManus and Box
subsequently returned and informed Cox that the "little deal was
done." Upon McManus' surrender, the car was searched and the
$20,000 in cash seized.
Dan Garrigan, the attorney representing Cox and McManus, went
to see the district attorney after McManus' surrender and release.
After that conversation, Garrigan stopped at Box's office, and the
Sheriff and Deputy Yarbrough were present. Garrigan informed Box
that the district attorney had indicated that he intended to
proceed with both the criminal charges and the forfeiture. The
Sheriff and Deputy Yarbrough were "clearly unhappy" with that
information, and one of them indicated that "Mr. Morris hadn't been
district attorney long, and he didn't understand the program."
That person also indicated that he would talk to Morris. Garrigan
testified that they were concerned because they did not have a
legitimate basis for searching McManus' car. They were afraid that
if Morris went ahead with the criminal case, they would not be able
to keep the money.
Following his clients' instructions, Garrigan did not oppose
the forfeiture proceeding and the $20,000 was forfeited in an
agreed judgment. The district attorney did not prosecute Cox,
-8-

Ives, Gatlin, or McManus. The twenty thousand dollars was divided
evenly between the Sheriff's Department and the Wise County
District Attorney's Office.
There is no allegation that the district attorney's office was
involved in the orchestration of this forfeiture or that any of the
$10,000 that office received was misappropriated. However, there
was evidence indicating that Box and Yarbrough received some of the
money that went to the Sheriff's Department through falsified
receipts.
A receipt evidencing the sale of a cellular telephone in the
amount of $2,500 was signed by Jackie Read. Read testified that
the phone belonged to Box, and that he signed it as a favor to Box.
Box told Read that it would not look good if he signed the receipt
because he was the bail bondsman and friends with the Sheriff.
Another receipt in the amount of $900 for a VCR and camcorder was
signed by Cliff Matthews. Texas Ranger Phil Ryan testified that
Box admitted that he had signed Cliff Matthews' name to that
receipt.
Additionally, a receipt for $2,000 signed by Rhonda Sue Lewis
was admitted into evidence. Lewis testified that she received $200
for assisting Deputy Yarbrough in a drug investigation. She
further testified that the receipt was blank when she signed it.
Burch was present when Lewis signed the receipt Deputy Yarbrough
gave her.
The preceding evidence establishes that the seizure and the
forfeiture of the $20,000 was orchestrated by the appellants to
-9-

cover up the extortion. Indeed, because Box was waiting to greet
Cox as he arrived at the jail immediately after his arrest with
information regarding a "loophole" (that cost him $6,000 in private
investigator fees), it appears that the extortion was planned prior
to the execution of the search warrant. Such an inference supports
the government's theory that the defect in the search warrant
Yarbrough drafted was intentional.
It is undisputed that illegal drug proceeds may be seized and
forfeited. However, in this case, the appellants did not discover
the money while searching either the house or the arrested men at
the scene of the drug bust. Instead, the $20,000 simply was the
amount of money requested in order to dismiss the charges.
Although it is apparent that any cash Cox forfeited would have been
illegal drug proceeds, that was not the appellants' focus regarding
the transaction. Additionally, the appellants allowed Cox (a drug
dealer out on bond) to choose the cohort that would surrender
himself, and the bond for this person was determined prior to the
surrender. Lastly, the falsified receipts allowed the jurors to
draw the inference that the money was divided among the appellants.
Stephens, 964 F.2d at 428. Accordingly, in regard to counts 1 and
8, we find the evidence established beyond a reasonable doubt that
the appellants obtained a payment to which they were not entitled,
knowing that the payment was made in return for official acts. Cf.
Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 1196 (1987)
(O'Connor, J., concurring) (although the dismissal of criminal
charges in exchange for dismissal of civil rights suit found
-10-

enforceable, "[n]o court would knowingly permit a prosecutor to
agree to accept a defendant's plea to a lesser charge in exchange
for the defendant's cash payment to the police officers who
arrested him.").7
In a related argument, Box contends that he cannot be guilty
of extortion "under color of official right," because he was a bail
bondsman, not a public official. However, we previously have
acknowledged that private persons may be convicted of aiding and
abetting a public official's extortion. United States v. Tomblin,
46 F.3d 1369, 1382 & n.26 (5th Cir. 1995) (citing United States v.
Margiotta, 688 F.2d 108, 131 (2d Cir. 1982), cert. denied, 461 U.S.
913, 103 S.Ct. 1891 (1983)); see also Evans, 112 S.Ct. at 1887 &
n.13 (noting that several states had defined extortion broadly
enough to include the conduct of a private individual).
Accordingly, this claim affords Box no relief.
B.
INSUFFICIENT EVIDENCE OF EFFECT ON INTERSTATE COMMERCE
Box and Yarbrough argue that the government offered no
evidence to show that the arrests of individuals committing crimes
in violation of state laws at the rest area park in Wise County,
Texas affected interstate commerce. The statute defines "commerce"
to mean:
commerce within the District of Columbia, or any
Territory or Possession of the United States; all
commerce between any point in a State, Territory,
Possession, or the District of Columbia and any point
7 Box also argues that there was no wrongful conduct shown
regarding the arrests at the roadside park. Contrary to his
assertion, there was sufficient evidence to show that the arrests
were made without probable cause.
-11-

outside thereof; all commerce between points within the
same State through any place outside such State; and all
other commerce over which the United States has
jurisdiction.
Section 1951(b)(3). Proving that interstate commerce has been
affected is critical because federal jurisdiction rests on that
basis. Wright, 797 F.2d at 248. However, the effect on commerce
need only be slight. Tomblin, 46 F.3d at 1482. The determination
whether interstate commerce has been affected is made on a case-by-
case basis. Wright, 797 F.2d at 248.
In Stephens, supra, we found a sufficient effect on interstate
commerce based on the following evidence.
The highway on which the cars were stopped and towed was
six-tenths of a mile of U.S. Highway 171, a major four-
lane highway that runs north and south through the
western corridor of Louisiana. This highway provides
access to other highways that lead to Texas if one
travels west, and to Arkansas if one travels north.
Testimony introduced at trial indicates that most of the
people who were stopped and had their cars towed were not
local residents, but individuals travelling to other
states. Accordingly, we find Stephens' argument that
interstate commerce was not affected to be without merit.
Stephens, 964 F.2d at 429.
In the case at bar, the arrests occurred at a roadside park on
U.S. Highway 287, which also provided access to other highways
leading to other states. The detained travelers were residents of
various states, including Oklahoma, South Carolina, Louisiana, and
Colorado. They were traveling to and from such places as New
Mexico, Oklahoma, Louisiana, Colorado, and Seoul, Korea.
The only significant difference between Stephens and the case
at bar is that here, the arrests were made at a roadside park
adjacent to the U.S. Highway, and in Stephens, the vehicles were
-12-

stopped actually on the highway. However, it is apparent that the
roadside park was constructed for such interstate travelers to
provide comfort for them and to facilitate their travels.8
Further, the travelers undoubtedly were delayed by the arrests.
Although the interference with interstate commerce may have been
minimal, that is all that is required. See United States v.
Villarreal, 764 F.2d 1048, 1052 (5th Cir.), cert. denied, 474 U.S.
904, 106 S.Ct. 272 (1985). We are persuaded that it was sufficient
to sustain Box's and Yarbrough's conspiracy convictions under the
Hobbs Act.9 Nevertheless, we must make a closer examination of the
evidence to determine if it is sufficient to sustain each
substantive conviction under the Hobbs Act based on the arrests at
the roadside park.
In regard to counts 2, 4, and 7, the named extortion victims
lived in Texas and were traveling between locations within the
state. Because they were Texas residents and traveling within the
state, there has been no showing that interstate commerce was
affected. We do not believe that even a slight effect on
interstate commerce was occasioned simply because of the location
of the roadside park, or because of such location in conjunction
with the extortion visited upon an intrastate traveler. The
8 There was testimony that it was "the only roadside park
with a restroom between Decatur and Henrietta."
9 Because we rejected Burch's claim that the conspiracy
theory regarding the drug forfeiture was legally deficient, we
need not address his evidentiary challenge to the conspiracy
theory involving the roadside arrests. Tomblin, 46 F.3d at 1385-
86.
-13-

convictions of Box and Yarbrough for the Hobbs Act violations in
counts 2, 4, and 7 must be reversed for insufficient evidence.
The named extortion victim in count 3 was a Texan traveling
from Fort Worth to Oklahoma. Count 5 involved an Austin, Texas
resident traveling to Colorado and New Mexico. Finally, the named
victim in count 9 was a Colorado resident traveling through Texas
on his way to Oklahoma. Thus, the evidence was sufficient to show
that interstate commerce was affected as to counts 3, 5, and 9.
The convictions of Box and Yarbrough pursuant to counts 3, 5, and
9 (Box only) must be affirmed.
Next, all three appellants contend that, as to the counts
involving the forfeiture of the drug proceeds,10 the government
failed to demonstrate any affect on interstate commerce. That
argument is precluded by this Court's decision in United States v.
Davenport, No. 93-1216 (5th Cir. Sept. 6, 1994) (unpublished),
which is binding on this panel. In Davenport, we rejected the
argument that illegal drug business is not the type of interstate
commerce that the Hobbs Act was intended to protect. There, two
former police officers and an accomplice were convicted of, among
other things, conspiracy to extort cash payments from drug dealers
in violation of the Hobbs Act. Recognizing that we "previously
held that `drug trafficking affects interstate commerce,'"11 and
10 Count 1 was the conspiracy count, and the extortion
disguised as forfeiture of drug proceeds was listed as an overt
act of the conspiracy. Count 8 was the substantive count
involving the extortion disguised as forfeiture of drug proceeds.
11 United States v. Gallo, 927 F.2d 815, 823 (5th Cir.
1991).
-14-

that such holding was based on Congress' findings,12 we therefore
reasoned that extortion which depleted funds otherwise available
for drug trafficking obstructed interstate commerce within the
meaning of the Hobbs Act.
III. JURY INSTRUCTIONS
A.
INTERSTATE COMMERCE NEXUS
The appellants contend that the charge is defective because it
required only that the jury make a general determination whether
the defendants' conduct interfered with or affected interstate
commerce. Instead, the appellants argue, the charge should have
required the jury to make a determination whether specific facts
occurred constituting interference with interstate commerce. They
also contend that the charge is defective because it gives the jury
(rather than the court) the duty to make the legal determination
whether interstate commerce was affected.
This Court reviews "jury instructions to determine whether the
court's charge, as a whole, is a correct statement of the law and
whether it clearly instructs jurors as to the principles of law
applicable to the factual issues confronting them." United States
v. Snyder, 930 F.2d 1090, 1093 (5th Cir.) (internal quotation
marks and citations omitted), cert. denied, 502 U.S. 942, 112 S.Ct.
380 (1991).
The court below charged the jurors as follows:13
12 21 U.S.C. § 801(3) & (4).
13 Although the court's charge essentially is taken from
the Fifth Circuit Pattern Jury Instruction No. 2.69, the
following excerpt from that pattern jury instruction was not
-15-

For you to find the defendant you have under
consideration guilty of this crime, you must be convinced
that the government has proved each of the following
beyond a reasonable doubt:
First: That the defendant obtained property
from another with that person's consent;
Second: That the defendant knowingly and
willfully did so by wrongful use of actual or
threatened force, violence, fear, or under
color of official right; and
Third: That the defendant's conduct
interfered
with
or affected
interstate
commerce.
The court further instructed the jury that the word
"`interstate commerce' means commerce or travel between one state,
territory or possession of the United States and another state,
territory or possession of the United States . . . ." The court
also defined the phrase "obstructs, delays, or affects commerce"
as:
any action which, in any manner or to any degree,
interferes with, changes, or alters the movement or
transportation or flow of goods, merchandise, money, or
other property in commerce. All that is necessary is
that the impact of the extortion affect interstate
commerce to a minimal degree. It is not necessary for
the government to prove that the defendant actually
intended to obstruct, delay, or affect commerce. The
government must prove beyond a reasonable doubt, however,
that the defendant deliberately performed an act, the
ordinary and natural consequences of which would be to
obstruct, delay, or affect commerce, and that commerce
was, in fact, obstructed, delayed or affected. It does
not matter whether the defendant knew that his conduct
would interfere with or affect interstate commerce.
provided to the jury: "In this case, the government argues that
___ [describe theory]. If you find that the government has
proved this beyond a reasonable doubt, then the necessary effect
on interstate commerce has been shown." (brackets in original).
-16-

The question whether to summarize the facts with respect to
the interstate aspect of the case is one within the trial court's
discretion. United States v. Hyde, 448 F.2d 815, 842 (5th Cir.
1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736 (1972).14 Because
the charge, read as a whole, is a correct statement of the law, the
district court did not abuse its discretion in declining to
summarize the facts constituting interference with interstate
commerce in this case. Hyde, 448 F.2d at 842.
Likewise, the appellants' claim that the court improperly
delegated its duty to the jury to make the legal determination
whether interstate commerce was affected is without merit. The
district court, in denying their motions for judgment of acquittal,
implicitly found that the allegations in the indictment, if
14 In United States v. Hooper, 575 F.2d 496, 497 (5th
Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 256 (1978), we found
no error in the ensuing instruction:
[i]t is the duty of the Court and not the jury to
determine whether the Government's evidence, if you
believe it beyond a reasonable doubt, established that
interstate commerce was affected by the conduct of the
defendants so as to bring the activities of the
defendants within the scope of the Hobbs Act and
sustain Federal jurisdiction.
In other words, with respect to the interstate
commerce aspects of the indictment, you need only to
decide whether you believe beyond reasonable doubt the
evidence offered by the Government to establish an
effect on interstate commerce. Therefore, I charge you
that the evidence in this case, if you thus believe it,
meets the requirements of Title 18, Section 1951,
United States Code, insofar as the conduct of the
defendants has affected interstate commerce, and
thereby sustains the Court's jurisdiction within the
scope of the Hobbs Act.
-17-

believed, would constitute interference with interstate commerce.
Under such circumstances, the matter was appropriate for the jury.
B.
"WRONGFUL CONDUCT" ELEMENT OF HOBBS ACT VIOLATION
The appellants, relying on Evans v. United States, 504
U.S. 255, 112 S.Ct. 1881 (1992), next contend that the court
erroneously refused an instruction which explained to the jury how
to distinguish lawful payments from extortion under the Hobbs Act.15
15 The appellants requested the following instruction:
The Defendants presented a defense to some
of these charges that the moneys paid by the
individuals arrested at the park were
legitimate fees owed to the bonding company
for bonding the individuals out of jail and
that the $20,000.00 forfeited to the District
Attorney's and Sheriff's offices was a
forfeiture pursuant to state law.
The receipt of a fee by a bondsman in
exchange for posting a bail bond is a
necessary and permissible form of business on
the part of persons in the business of
posting bail bonds.
In addition, the forfeiture of property
from individuals that are involved in the
illegal manufacture and distribution of
controlled substances is legal and proper
under the Texas State law.
Thus, the acceptance by a bondsman of a
fee for his services or the forfeiture of
property from individuals participating in
illegal controlled substances transactions
does not, in itself, constitute a violation
of the Hobbs Act.
However, if a public official demands or
accepts money in exchange for a specific
requested exercise of his or her official
power, such a demand or acceptance does
constitute a violation of the Hobbs Act
regardless of whether the payment is made in
the form of a bonding fee or a forfeiture of
-18-

This Court reviews jury instructions for an abuse of discretion.
Tomblin, 46 F.3d at 1378. "`The refusal to give a jury instruction
constitutes error only if the instruction (1) was substantially
correct, (2) was not substantially covered in the charge delivered
to the jury, and (3) concerned an important issue so that the
failure to give it seriously impaired the defendant's ability to
present a given defense.'" Id. at 1378-79 (quoting United States
v. Pennington, 20 F.3d 593, 600 (5th Cir. 1994)) (other citations
omitted).
In Tomblin, supra, the appellant raised an analogous claim,
and we opined that a jury instruction must adequately distinguish
between the intent behind a lawful campaign contribution and the
intent behind an unlawful bribery. There, the trial court charged
the jury on the bribery issue using Fifth Circuit Pattern Jury
Instruction Nos. 2.13 and 2.12. We noted that while use of a
pattern instruction was not conclusive, we encouraged their use.16
Tomblin, 46 F.3d at 1380 n.16. We found that although Tomblin's
requested charge sharply focused on the particular facts of the
case as they pertained to his defense, the court's charge as
submitted allowed him to present his defense to the jury.
In case at bar, the court's charge instructed the jury that:
"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,
property.

16 The court below used Fifth Circuit Pattern Jury
Instruction No. 2.69.
-19-

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. This is true even if the official was
already duty bound to take or withhold the action in
question, or even if the official did not have the power
or authority to take or withhold the action in question,
if the victim reasonably believed that the official had
that authority or power.
The government points to a similar instruction approved in
United States v. Dozier, 672 F.2d 531, 540 n.6 (5th Cir.), cert.
denied, 459 U.S. 943, 103 S.Ct. 256 (1982).
W e f i n d t h a t t h e
appellants have neither shown that the proposed instruction was not
substantially covered in the actual charge nor that their ability
to present their defense was seriously impaired.
IV.
CLAIM OF IMPROPER IMPEACHMENT EVIDENCE
Yarbrough contends that the district court erroneously ruled
that, if he elected to testify, then the government would be
allowed to impeach him with evidence of an unrelated capital murder
conviction. Yarbrough did not testify.

Rule 609(a)(1) provides that evidence that an accused has been
convicted of a crime punishable by death or imprisonment in excess
of one year shall be admitted if the court finds that the probative
value of admitting this evidence outweighs its prejudicial effect
to the accused. The court below, on the record, referenced the
proper analysis before denying the defendant's request. No abuse
of discretion has been shown. See United States v. Turner, 960
F.2d 461, 465 (5th Cir. 1992) (trial court did not abuse its
discretion in allowing government to establish on cross-examination
-20-

that defendant had been convicted of aggravated sexual abuse,
burglary of a habitation, and possession of a deadly weapon in a
penal institution); United States v. Barnes, 622 F.2d 107, 109 (5th
Cir. 1980) ("The conviction [for heroin possession] was relevant as
evidence of the defendant's criminal nature from which the jury
could infer a propensity to falsify testimony.").17
V.
ADMISSION OF DOCUMENTS
Under the Federal Rules of Evidence, written documents
introduced for the truth of the statements contained therein are
generally inadmissible as hearsay unless they meet one of the
recognized hearsay exceptions. 2 MCCORMICK ON EVIDENCE § 284, at 262-63
(4th ed. 1992). The two hearsay exceptions relevant to this appeal
are "Records of Regularly Conducted Activity" in Rule 803(6), and
"Public Records and Reports" in Rule 803(8).
A. AUTHENTICATION OF RECORDS UNDER FED.R.EVID. 803(6)
Burch and Box contend that records from the Wise County
Attorney's office were erroneously admitted into evidence because
they were not authenticated. The records concerned people who had
been arrested in Wise County for public lewdness and indecent
exposure offenses in 1987 and 1988. They contend that the witness
called to authenticate the records, County Attorney Stephen Hale,
was not county attorney at the time the records were made, and he
17 See also United States v. Brackett, 582 F.2d 1027 n.1
(5th Cir. 1978) (without discussion, we opined that the district
court did not err by "[r]efusing to suppress, as impeaching
evidence pursuant to Fed.R.Evid. 609, evidence of Appellant's
prior bank robbery and manslaughter convictions, thereby
effectively preventing Appellant from testifying in his own
behalf."), cert. denied, 440 U.S. 921, 99 S.Ct. 1247 (1979).
-21-

thus could not properly authenticate them. They further contend
that because part of the government's case was its claim that
records were "lost" or irregular, it was especially important for
the government to establish that the records introduced were
authentic.
The primary focus of the public records hearsay exception in
Rule 803(6) is on the reliability or trustworthiness of the records
sought to be introduced, and that rule sets forth its own basis for
authentication. United States v. Veytia-Bravo, 603 F.2d 1187,
1188-89 (5th Cir. 1979), 444 U.S. 1024, 100 S.Ct. 686 (1980).18 The
trial court has broad discretion to determine the admissibility of
the documents. Id. A qualified witness is one who can explain the
system of record keeping and vouch that the requirements of Rule
803(6) are met; the witness need not have personal knowledge of the
record keeping practice or the circumstances under which the
objected to records were kept. United States v. Iredia, 866 F.2d
114, 119-20 (5th Cir.), cert. denied, 492 U.S. 921, 109 S.Ct. 3250
(1989).
The court below found that "the proper indicia . . . of
reliability has been shown in the identification by the last
witness, Hale, that he could recognize the records, knew that they
were from his office, and he testified to the other requirements of
18 See also Fed.R.Evid. 901(a) ("[t]he requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent
claims").
-22-

the business records." The appellants have failed to show that the
district court abused his discretion in admitting the records.
B. ADMISSIBILITY OF RECORDS UNDER FED.R.EVID. 803(8)
The appellants contend that the district court erred in
admitting various records from the Wise County sheriff's office,
including jail cards, arrest reports, record bail books, and jail
logs. All three appellants objected to the admission of these
records, complaining that they were not admissible under Rule
803(8) because the public records exception explicitly excludes "in
criminal cases matters observed by police officers and other law
enforcement personnel." The appellants cited United States v.
Cain, 615 F.2d 380, 382 (5th Cir. 1980), which held that reports
excluded by Rule 803(8) may not be admitted merely because they
satisfy the regularly-kept-records exception of Rule 803(6).

Relying on United States v. Quezada, 754 F.2d 1190 (5th Cir.
1985), the court below overruled their objection and admitted the
records from the sheriff's office. In Quezada, this Court
explained that:
The law enforcement exception in Rule 803(8)(B) is based
in part on the presumed unreliability of observations
made by law enforcement officials at the scene of a
crime, or in the course of investigating a crime . . . .
Thus, a number of courts have drawn a distinction for
purposes of Rule 803(8)(B) between law enforcement
reports prepared in a routine, non-adversarial setting,
and those resulting from the arguably more subjective
endeavor of investigating a crime and evaluating the
results of that investigation.
754 F.2d at 1193-94.19
19 Significantly, in Quezada, we acknowledged our holding
in Cain and found that it was not contrary to our decision. Id.
-23-

The government contends that the records at issue were
properly admitted under Quezada as routine, objective observations
made as part of the everyday function of the preparing official,
and were not made for the purposes of prosecuting the individual
being described in the report. Thus, the government argues, the
concerns of the "law enforcement" clause are not implicated. We
find this reasoning persuasive. The law enforcement clause has no
applicability in that it was designed to protect the arrested
individual from being convicted based on unreliable hearsay, e.g.,
the police officer's perceptions in an adversarial investigation.
In contrast, in the instant case, the records were admitted against
the officers and the co-conspirators who were keeping the records.
Viewed in that light, the records were more akin to an "admission"
than unreliable hearsay. The use of the records certainly do not
implicate the concern of Quezada as the records from the sheriff's
office were not made pursuant to the investigation of the instant
offenses. The district court did not abuse its discretion in
admitting the records from the sheriff's office.
VI. DENIAL OF SEVERANCE MOTION
Box moved to sever his trial from that of Yarbrough, Burch,
and Conner, and also to sever the income tax counts pursuant to
Federal Rules of Criminal Procedure 8(b) and 14. The trial court
denied the motion to sever, finding that joinder was proper under
Rule 8(b) and that cautionary instructions would cure any potential
prejudice.
at 1193 n.9.
-24-

The initial joinder of Box, Yarbrough, Burch and Conner for
trial was legitimate because they were charged with having
conspired with each other. United States v. Elam, 678 F.2d 1234,
1250 (5th Cir. 1982). The district court's decision of whether to
grant a severance under Rule 14 because of prejudice is reviewable
only for an abuse of discretion. United States v. Stotts, 792 F.2d
1318, 1321 (5th Cir. 1986); see also United States v. Salomon, 609
F.2d 1172, 1175 (5th Cir. 1980) (to establish an abuse of
discretion of the district court, a defendant must show that he
received an unfair trial and suffered compelling prejudice against
which the trial court was unable to afford protection.). An
appellant must demonstrate something more than the fact that a
separate trial might offer him a better chance of acquittal.
United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir. 1981).
Box contends that the pretrial publicity (regarding
Yarbrough's murder conviction and the Sheriff taking vacation after
the investigation) "spilled over into the trial even though the
trial judge diligently attempted to screen out those individuals
who stated that they had formed an opinion which they would not be
able to shake." Box, however, has failed to demonstrate any actual
prejudice. Further, because the district court allowed extensive
voir dire regarding the pretrial publicity and admonished the jury
to avoid any news sources, no abuse of discretion was shown.
United States v. Cravero, 545 F.2d 406, 412 (5th Cir. 1976), cert.
denied, 429 U.S. 1100, 97 S.Ct. 1123 (1977).
-25-

Box next contends that he should have been tried separately
because he was unable to call his codefendants to testify. Because
Box completely failed to show that his codefendants would have
testified on his behalf at a separate trial, this claim is without
merit. United States v. Kane, 887 F.2d 568, 573 (5th Cir. 1989),
cert. denied, 493 U.S. 1090, 110 S.Ct. 1159 (1990).
Box also claims that the joinder of the extortion counts with
the income tax counts "denied him his Fifth Amendment privilege, as
he could not offer testimony on either group of charges without
subjecting himself to cross-examination on the other." Box fails
to reveal any testimony he would have given had there been a
severance. He therefore has shown no prejudice. United States v.
Davis, 752 F.2d 963, 972 (5th Cir. 1985).
As the government asserts, most of the prejudicial evidence
and hostile defenses Box complained of were never before the jury.
Finally, the district court did not abuse its discretion in
refusing to sever the income tax counts, because the underlying
offense of extortion generated part of the income upon which the
tax offenses were based.
VIII. BOX'S SENTENCE
Box was sentenced to 60 months each on Counts 1, 2, 3, 4, 5,
7, 8, and 9, and 36 months each on Counts 10 and 11, all terms to
be served concurrently. The district court also imposed a $500
special assessment and a $10,000 fine. Box raises four challenges
to the district court's application of the sentencing guidelines.
-26-

This Court reviews the district court's application of the
sentencing guidelines de novo, while reviewing findings of fact
under a clearly erroneous standard. United States v. Brown, 7 F.3d
1155, 1159 (5th Cir. 1993). Due deference is given to the district
court's application of the guidelines to the facts. United States
v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989); see also 18 U.S.C.
§ 3742(e).
A.
ADJUSTMENT FOR BRIBING ELECTED OFFICIAL
Box argues that the district court in assessing an eight-level
adjustment pursuant to §2C1.1(b)(2)(B), which provides that "[i]f
the offense involved a payment for the purpose of influencing an
elected official or any official holding a high level decision-
making or sensitive position, increase by 8 levels." The
commentary to that guideline explains that an such an official
"includes, for example, prosecuting attorneys, judges, agency
administrators, supervisory law enforcement officers, and other
governmental officials with similar levels of responsibility."
Section 2C1.1, comment. (n.1).
Box argues that because Sheriff Burch, the elected official,
was acquitted of the substantive counts of extortion involving the
roadside park arrests, there was no "official." Notwithstanding
the acquittal of Burch for the substantive counts, we find that
Chief Deputy Yarbrough was a supervisory law enforcement officer
within the meaning of the commentary to §2C1.1. This claim is
without merit.
B.
ADJUSTMENT FOR VULNERABLE VICTIMS
-27-

The district court found that the individuals arrested at the
roadside park were "vulnerable victims" pursuant to §3A1.1 and
added two offense levels.20 Section 3A1.1 provides that "[i]f the
defendant knew or should have known that a victim of the offense
was unusually vulnerable due to age, physical or mental condition,
or that a victim was otherwise particularly susceptible to the
criminal conduct, increase by 2 levels." The commentary states
that the adjustment is applicable when the defendant selects an
unusually vulnerable victim for his criminal activity. Section
3A.1, comment. (n.1). It also provides scenarios demonstrating
whether the adjustment should be applied. For instance, it would
apply if a defendant marketed a bogus cure for cancer in a fraud
case or if a defendant selected a handicapped victim to rob. Id.
It would not apply, however, to a bank teller solely because of the
teller's position in the bank. Id.
The finding "of `vulnerability is a complex fact dependent
upon a number of characteristics which a trial court could not
possibly articulate completely,' and is certainly `not reducible to
a calculation of the victim's age or to a diagnosis of the victim's
disease.'" Brown, 7 F.3d at 1160 (quoting United States v. Mejia-
Orosco, 868 F.2d 807, 809 (5th Cir.), cert. denied, 492 U.S. 924,
20 For example, the presentence report (which was adopted
by the court), provided that one named victim, "[o]n the date of
his arrest, . . . was driving a Maserati and was employed in the
oil/gas business. Mr. Cash was particularly susceptible to the
crime because he drove an expensive automobile and was likely
targeted for arrest because of it."
-28-

109 S.Ct. 3257, 106 L.Ed.2d 602 (1989)). Accordingly, we give the
finding of vulnerability due deference. Brown, 7 F.3d at 1160.
The government claims that the roadside park arrestees were
all white-collar professionals who were not local residents, and
that fighting a stigmatizing "morals" charge in a county away from
home would have caused them emotional and financial problems.
Therefore, the government argues that the victims were vulnerable
in that they were not likely to complain because of their
professions and positions in their communities, and because "it
would have been a credibility contest between the victims and a
Wise
County
deputy." Box disputes the government's
characterization of these facts, claiming that the roadside park
arrestees were not the type of "vulnerable" victims contemplated by
§3A1.1.
In United States v. Moree, 897 F.2d 1329 (5th Cir. 1990), the
defendant's offense arose from his offer to "fix" the trial of an
indicted public official, and the district court applied the
vulnerable victim adjustment. There, the victim's particular
susceptibility to the crime was his prior indictment. Id. at 1336.
We concluded that although that such vulnerability made the crime
possible, it did not make the victim an unusually vulnerable
victim. Id. We explained that "neither a businessman nor a bank
should be considered unusually vulnerable to armed robbery merely
because the bank robber knows they have cash on hand or may have
some breach in their security system." Id.
-29-

Similarly, in the case at bar, if the victims had unsullied
reputations and significant financial resources, those alleged
"vulnerabilities" simply made the extortion possible. We find that
the victims were not particularly susceptible within the meaning of
§3A1.1, and thus, the district court erred in applying this
enhancement. Cf. Brown, 7 F.3d at 1160-61 (defendant targeted
lonely, elderly widows in money order scam and court properly
applied §3A1.1 adjustment); United States v. Rocha, 916 F.2d 219,
244-45 (5th Cir. 1990) (vulnerable victim in that kidnap victim was
under 18 years old and still terrified at trial), cert. denied, 500
U.S. 934, 111 S.Ct. 2057 (1991); United States v. Bachynsky, 949
F.2d 722 (5th Cir. 1991) (adjustment applied in fraud case when
patients of defendant physician were given false information
regarding their medical status), cert. denied, __ U.S. __, 113
S.Ct. 150 (1992).
C.
DOUBLE COUNTING
Box claims that the two-level increase in his offense level
under §2T1.3(b)(1) "amount[ed] to a doubling up of guideline levels
for conduct already contemplated under the Extortion charges."
The base offense level for subscribing to false income tax
returns in violation of 26 U.S.C. § 7206(1), Box's offense of
conviction in counts 10 and 11, was found in §2T1.3(a)(1).21
Additionally, §2T1.3(b)(1) provided that the offense level should
be increased by 2 levels if the defendant failed to report the
21 To arrive at the base offense level, §2T1.3(a)(1)
directed the reader to the Tax Table in §2T4.1.
-30-

source of income exceeding $10,000 in any year from criminal
activity. The presentence report stated that Box failed to report
$10,268.37 in 1987, and $20,537.66 in 1988, and thus, the two-level
increase was assessed. The base offense level for the extortion in
violation of the Hobbs Act was found in §2C1.1(a).
The sentencing guidelines do not prohibit all double counting.
United States v. Godfrey, 25 F.3d 263, 264 (5th Cir.), __ U.S. __,
115 S.Ct. 429 (1994). Double counting is prohibited only if the
particular guidelines at issue forbid it. Id. Even assuming
arguendo that there was double counting, we have found no express
language in the guidelines prohibiting this enhancement. See
Rocha, 916 F.2d at 242-44 (court properly allowed enhancement for
a ransom demand and the offense of extortion). Also, it should be
noted that because the sentence was computed pursuant to the
grouping rules of §§3D1.4 and 3D1.2(d), the addition of the two
levels added nothing to Box's sentence.
D. CRIMINAL HISTORY CATEGORY SCORE
Box contends that the district court improperly assessed one
point to his criminal history score for his prior assault
conviction. The sentence for Box's prior assault conviction "was
imposed within ten years of the defendant's commencement of the
instant offense" and therefore, pursuant to §§4A1.1(c) and
4A1.2(e), the one point was properly added to his criminal history
score. See United States v. Lopez, 923 F.2d 47, 48 (5th Cir.),
cert. denied, 500 U.S. 924, 111 S.Ct. 2032 (1991). Box, citing no
authority for this proposition, asserts that the prior conviction
-31-

should not have been considered because of the "four year delay
between the `commencement of [the instant] offense' and the trial."
Box has failed to show that the court incorrectly applied the
guidelines. See United States v. Matovsky, 935 F.2d 719, 721 (5th
Cir. 1991) (citing 18 U.S.C. § 3742(e)). Moreover, as the
government asserts, if this one point had not been counted, Box's
criminal history category (I) would have remained the same. This
contention will afford Box no relief.
In conclusion, we also reject Box's claim that the evidence is
insufficient to support his two convictions (counts 10 and 11) for
filing a false income tax return in violation of 26 U.S.C. §
7206(1). There is ample evidence to sustain the convictions. With
respect to the remaining arguments of Box, we have considered
briefs and oral arguments of counsel and the pertinent parts of the
record, and conclude there is no error requiring reversal.
CONCLUSION
For the above stated reasons, Yarbrough's convictions as to
counts 1, 3, 5, and 8 are AFFIRMED, and Yarbrough's convictions as
to counts 2, 4, and 7 are REVERSED; Burch's convictions are
AFFIRMED; and Box's convictions as to counts 1, 3, 5, 8, 9, 10, and
11 are AFFIRMED, Box's convictions as to counts 2, 4, and 7 are
REVERSED, and Box's sentence is VACATED and REMANDED for further
proceedings.
-32-