           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 1, 2009

                                       No. 08-31030                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee

v.

MICHAEL WALKER; VERNON CLAVILLE

                                                   Defendants - Appellants




                   Appeals from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 5:07-CR-50097-1


Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
       This court, having carefully reviewed the parties’ briefs and pertinent
portions of the record in light of the parties’ oral arguments, concludes there is
no reversible error in the convictions or sentences. The contentions may be
briefly addressed.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-31030

                                  I. FACTS
      Michael Walker (“Walker”) and Vernon Claville (“Claville”) (collectively
the “Appellants”) were both elected judges serving in Caddo Parish, Louisiana.
Together with their mutual friend Travis McCullough, Appellants used their
influence to direct money to A-Instant Bail Bonds in exchange for bribes. A jury
found both Appellants guilty of violating the Racketeer Influenced Corrupt
Organizations Act, 18 U.S.C. § 1962(c) (“RICO”). At sentencing, the judge found
that both Appellants had an offense level of 21 with a criminal history category
of I, yielding an advisory guideline range of 37 to 46 months. The judge went
beyond the guidelines and sentenced Walker to 120 months and Claville to 60
months of imprisonment. Walker and Claville appeal on several grounds.
                              II. DISCUSSION
Did the Government prove venue?
      Claville asserts that the Government did not prove venue as an element
of the offense. Under federal law, the prosecution bears the burden of proving
venue as an element of the offense, but “the prosecution need only show the
propriety of the venue by a preponderance of the evidence, not beyond a
reasonable doubt.” United States v. Carreon-Palacio, 267 F.3d 381, 390 (5th Cir.
2001) (internal quotations omitted). The indictment provides specific addresses
showing Claville worked for Caddo Parish and that A-Instant Bail Bonds was
based in Shreveport. Both Caddo Parish and Shreveport are in the Western
District of Louisiana.   No controverting evidence was offered.      Thus, the
prosecution established venue by a preponderance of the evidence.




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Did the Government prove continuity to show a pattern of racketeering?
      The Government presented evidence of ten acts occurring over a period
beginning May 3, 2007 and ending July 21, 2007. The Appellants assert that
this two-and-a-half month period is insufficient to establish the continuity facet
of a pattern of racketeering as required by RICO. Despite short durations,
courts have held that the continuity facet is met when there is “no doubt that a
jury could reasonably infer from the frequency and escalating seriousness of the
defendants’ crimes that their ‘past conduct . . . by its nature projects into the
future with a threat of repetition.’” United States v. Richardson, 167 F.3d 621,
626 (D.C. Cir. 1999) (quoting H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241,
109 S. Ct. 2893, 2902 (1983)). Here, the evidence shows there is no doubt that
a jury could reasonably infer from the proven acts that Walker’s and Claville’s
actions would “project in to the future with a threat of repetition.” As such, the
Government met the continuity facet of a pattern of racketeering.
Is RICO’s pattern requirement unconstitutionally vague?
      Appellants claim that RICO’s pattern requirement is unconstitutionally
vague because it is uncertain what period of time is required to constitute a
pattern. This court reviews the constitutionality of a statute de novo. United
States v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009).             A statute is
unconstitutionally vague when it “either forbids or requires the doing of an act
in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application.” Connally v. General Constr. Co.,
269 U.S. 385, 391, 46 S. Ct. 126, 127 (1926).
      This claim has already been brought in exactly the same manner and was
rejected by the Fifth Circuit. Abell v. Potomac Ins. Co., 946 F.2d 1160 (5th Cir.


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                                  No. 08-31030

1991). The Abell court held that “a party has standing to raise a vagueness
challenge only insofar as the statute is vague as applied to his or her specific
conduct.” Id. at 1167 (emphasis added) (quotation omitted). On the facts proven
to the jury, a person of ordinary intelligence in Appellants’ positions would have
had adequate notice of the criminality of his actions and RICO’s reach.
Accordingly, there is no vagueness as applied to Walker or Claville.
Can the judicial branch of Louisiana be considered an “enterprise” under RICO?
      Appellants assert that the judicial branch of Louisiana cannot be an
“enterprise” under 18 U.S.C. § 1641(a). It is well established that a government
unit with multiple sub-departments can be a RICO enterprise. United States v.
Stratton, 649 F.2d 1066, 1074 (5th Cir. July 1981). A state’s judicial branch
qualifies as an enterprise under RICO, and the evidence was sufficient to satisfy
the legal definition of a RICO “enterprise”. The fact that Walker and Claville
were judges in different departments is of no consequence.
Was there evidence of a sufficient nexus with interstate commerce under RICO?
      Appellants assert that the Government did not meet RICO’s requirement
that the enterprise itself be engaged in interstate commerce or that its activities
affect interstate commerce. 18 U.S.C. § 1962(c). The court reviews this issue de
novo. Rogers v. McDorman, 521 F.3d 381, 391 (5th Cir. 2008). The nexus with
interstate commerce required by RICO is minimal. See United States v. Delgado,
401 F.3d 290, 297 (5th Cir. 2005). The Government presented evidence that A-
Instant Bail Bond Company wrote bonds through a company in California. This
is a sufficient nexus with interstate commerce to meet the requirements of
RICO.




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                                  No. 08-31030

Was Walker unduly prejudiced by witness testimony concerning Walker’s drug
use?
     Walker contends that the trial court erred when it allowed McCullough to
testify that he bribed Walker with Oxycontin instead of cash. This court rarely
disturbs a Fed. Rule of Evid. 403 ruling and reviews the decision for a clear
abuse of discretion. United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007).
The judge introduced the Oxycontin evidence because it was intrinsic to charges
that Walker accepted “cash and other things of value.” The judge weighed the
probative value against the prejudicial effect and gave several instructions
limiting the jury’s ability to consider this evidence.       Walker’s argument
addresses a completely unrelated topic and fails to consider the true basis of the
judge’s ruling. Accordingly, this court find no clear abuse of discretion.
Was there sufficient evidence that Claville was an elected or appointed judge?
      Claville asserts that the Government did not present sufficient evidence
to prove that he was a juvenile court judge. This court reviews the sufficiency
of the evidence de novo. Rogers v. McDorman, 521 F.3d 381, 391 (5th Cir. 2008).
Sufficiency of the evidence challenges fail if a rational trier of fact could have
found that the Government proved the essential elements of the crime charged
beyond a reasonable doubt. United States v. Webster, 960 F.2d 1301, 1307-08
(5th Cir. 1992).
      The Government offered evidence that implicitly proved that Claville was
a judge. Witnesses referred to Claville as a judge throughout the trial. Further,
the Government produced witnesses who testified that they released specific
defendants after receiving a call from Judge Claville, something only a judge
could order. Accordingly, a reasonable jury could properly find that Claville was
a judge through this circumstantial evidence.


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                                  No. 08-31030

Was there sufficient evidence that Claville accepted bribes?
      Sufficiency of the evidence challenges fail if a rational trier of fact could
have found that the Government proved the essential elements of the crime
charged beyond a reasonable doubt. United States v. Webster, 960 F.2d 1301,
1307-08 (5th Cir. 1992). McCullough, who solicited business for A-Instant Bail
Bond Company, testified that he gave Claville money to release prisoners from
juvenile court. Further, the Government presented audio and video recordings
of McCullough and Claville setting up another person’s release in exchange for
money. A reasonable jury could properly find that Claville was bribed.
Were the defendants’ sentences unreasonable?
      Walker and Claville assert that the district court did not sufficiently state
its reasons under 18 U.S.C. § 3553(a) for upwardly departing from the properly
calculated guideline range. No procedural error is alleged, so this court reviews
the substantial reasonableness of the sentence imposed under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597
(2007). These claims are meritless; the judge explicitly considered the factors
listed in § 3553(a) and held that both Appellants deserved greater sentences
because, among other reasons, they tainted the judicial process and undermined
“the idea of equality in a court of law.” The district court did not abuse its
discretion.
                             III. CONCLUSION
      For reasons stated in this opinion, the district court judgments of
conviction and sentences are AFFIRMED.




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