                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                                                             August 15, 2003
                      For the Fifth Circuit
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 02-41248




                     UNITED STATES OF AMERICA

                                                Plaintiff - Appellee


                              VERSUS


                         RICARDO CISNEROS


                                              Defendant - Appellant



           Appeal from the United States District Court
            For the Southern District of Texas, Laredo
                          L-01-CR-726-ALL


Before DAVIS, SMITH and DUHE’, Circuit Judges.

PER CURIAM:*

      Cisneros, a bail bondsman, challenges his conviction and

sentence under the Hobbs Act for conspiring and acting with Juan

Alfonso Rodriguez, the Assistant Chief Investigator for the Webb

County District Attorney, to extort money from Cisernos’ clients to

fix criminal cases pending in Webb County Texas.    We find no error


  *
   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opinion should not be published and is not precedent except under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.
and affirm.

                                I.

                                A.

     The prosecution against Cisneros stems from an investigation

into public corruption in the DA’s Office in Webb County, Texas.

This court has issued two published opinions in cases arising

from this investigation.   See United States v. Rubio, 321 F.3d

517 (5th Cir. 2003); United States v. Villafranca, 260 F.3d 374

(5th Cir. 2001).

     Between 1994 and 1998, Cisneros and Rodriguez worked

together to secure favorable dispositions of cases against

several of Cisneros’ clients in exchange for money.   Rodriguez

testified that, in his position as the assistant chief

investigator of the DA’s office, he was authorized to reduce

charges in misdemeanor cases.   Cisneros approached Rodriguez

about fixing theft, drug and DWI cases, usually by reducing the

charged offenses to lesser charges.   In return for fixing cases

for Cisneros’ clients, Rodriguez received varying amounts of cash

from Cisneros ranging from $150 to $200 for thefts and $300 for

DWI’s.

     At trial, the arresting officers, Cisneros’ clients who were

arrested for the underlying offenses and Rodriguez testified

against Cisneros.   Through this testimony the Government showed

that Cisneros and Rodriguez fixed DWI cases filed against Joe



                                 2
Alaniz, Jose Molina, Jose Acevedo, and Cesar Adams in return for

money.      The Government also showed that Cisneros and Rodriguez

fixed a theft case for Laura Carrillo-Garcia in return for money.



     To establish the required nexus to interstate commerce, the

Government presented the expert testimony of Dr. Robert Voas, an

expert on alcohol and highway safety.   Dr. Voas testified at

length regarding the effect of alcohol related accidents on

highway safety.   Dr. Voas testified that alcohol is the most

important factor in fatal automobile accidents which cause

congestion of highways, delaying the flow of commerce.   According

to Dr. Voas, the enforcement of DWI laws acts as a deterrent to

drunk driving; however, the failure to enforce these laws reduces

their effectiveness.

                                 B.

     The jury convicted Cisneros on one conspiracy count(Count 1)

and one substantive count(Count 2) of violating the Hobbs Act.

Count 1 charged Cisneros with conspiring with Rodriguez to extort

money to fix cases pending in Webb County.   Count 2 charged

Cisneros and Rodriguez with extorting money from Cesar Adams who

was charged with DWI.   The district court sentenced Cisneros to

concurrent sentences of forty-one months along with a fine, a

term of supervised release and a special assessment.   This appeal

followed.



                                  3
                                II.

                                A.

     Cisneros argues first that as applied to his case, the Hobbs

Act is unconstitutional because Congress exceeded its power under

the Commerce Clause.

     This argument is foreclosed by this court’s decisions in

Rubio and Villafranca.    As noted above, the charges in Rubio

arose out of the same investigation of the Webb county DA’s

office.   Like Cisneros, defendants, Rubio and Castaneda, were

also charged with extortion in violation of the Hobbs act and

conspiracy to commit extortion in violation of the Hobbs Act.

Some of the charges against Rubio and Castaneda stemmed from

taking money to fix DWI offenses.     Like Cisneros, Rubio and

Castaneda argued that fixing DWI cases would not permit a fact

finder to find the required nexus to interstate commerce.     In

addressing this argument, we stated the following in Rubio:

          While the vast majority of the counts against
     Rubio and Castaneda are controlled by Villafranca,
     others involve the extortion of money to provide
     favorable dispositions of DWI offenses. In United
     States v. Wright, 797 F.2d 245 (5th Cir. 1986), this
     court found that the requisite nexus to commerce
     existed where extortion charges under the Hobbs Act
     involved failure to prosecute drunk drivers. In United
     States v. Wright, the court relied on expert testimony
     that non-enforcement of DWI laws results in more
     alcohol related accidents and less highway safety to
     support its conclusion that the extortion affected
     interstate commerce.
          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

                                 4
     driver or by suspending or revoking driving privileges
     but that failure to prosecute drunk drivers encourages
     more drunk driving and jeopardizes highway safety.
          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.
          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.

     The facts of this case are indistinguishable from Rubio.

The Government relied on the same expert witness, Dr. Voas, who

gave essentially the same testimony as he did in Rubio.    Thus,

the counts with which Cisneros was charged suffer no

constitutional infirmity on this basis. Accordingly, Cisneros’

argument on this point is controlled by Rubio.

     Cisneros also argues that Count I must be reversed because

one of the objects of the conspiracy involved an arrest for

theft. But the government’s proof that Cisneros conspired to fix

DWI cases is sufficient to support the conviction on this count.

It is therefore unnecessary for us to consider whether fixing

retail theft cases can also satisfy the Hobbs Act interstate

commerce element.   The jury obviously accepted the government’s

theory that a nexus existed between fixing DWI cases and

interstate commerce because the jury also returned a guilty

verdict on the substantive Hobbs Act count(Count 2) charging

defendant with fixing a DWI case.


                                 5
                                B.

     Cisneros argues next that the trial court erred in refusing

the following requested instruction:

     To convict defendant, however, you must find and
     believe beyond a reasonable doubt that each of the
     wrongful acts alleged by the Government, by itself,
     without considering the aggregate effect of such
     alleged violations of law, had a substantial effect on
     interstate commerce. To convict, you must be satisfied
     beyond a reasonable doubt that the effect on interstate
     commerce of such alleged offense was not remote or
     attenuated, but was direct and substantial.

The district court rejected this instruction and instructed the

jury as follows:

     Commerce includes travel, trade, transportation, and
     communications. “Interstate commerce” means commerce
     between one state of the United States and another. It
     is not necessary for the government to prove that a
     defendant’s conduct in a particular count substantially
     affected interstate commerce. Instead, it is
     sufficient for the evidence that the conduct had only a
     minimal effect, so long as the conduct described in a
     particular count is of a type which, if repeated many
     times over, would have a substantial effect on
     interstate commerce.

     We have approved the standard set out in the district

court’s instruction on a number of occasions.    See United States

v. Jennings, 195 F.3d 795, 800 (5th Cir. 1999); 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).    Cisneros’ argument is

therefore foreclosed by circuit precedent.

                                C.



                                6
      Cisneros argues next that the government failed to produce

sufficient evidence to establish an essential element of a Hobbs

Act case, namely that a public official was paid for the

favorable disposition of a criminal case.     In reviewing a

sufficiency claim, the court “must determine ‘whether, after

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).

      Under the Hobbs Act, one of the elements of extortion is

that property be obtained from another “under the color of

official right.”1   18 U.S.C. §1951 (b)(2).   In order to prove

that the property was wrongfully obtained under the “color of

official right,” the Government must prove that a public official

obtained payment to which he was not entitled.     United States v.

Stephens, 964 F.2d 424, 429 (5th Cir. 1992).     Thus, in order to

convict Cisneros, the Government had to show that a public


  1
     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.


                                 7
official was paid part of the proceeds taken to fix the

arrestee’s case.

     With regard to Count II, Cisneros argues that only he and

the arrestee, Cesar Adams, were involved in fixing Adams’ case.

There is no contention by the Government that Cisneros is a

public official.

     The trial record does not support Cisneros’ argument.     The

record reveals that after he was arrested, Adams paid Cisneros

$800 to have his case fixed.   Three weeks later, Cisneros told

Adams that “everything was taken care of.”   Adams’ DWI was

reduced to a charge of failing to stay in the proper lane, and

the case was disposed of through the payment of a $150 fine.

Rodriguez, who is unquestionably a public official, testified

during Cisneros’ trial that he fixed Adams case and was paid $300

to do so.   Rodriguez’s testimony, along with this corroborating

evidence, demonstrates that this element of the offense was met.

Thus, Cisneros’ sufficiency argument targeting this element of

the offense has no merit.

     Cisneros also contends that the Government was required to

prove that the extortion had the effect of depleting the assets

of the arrestee.   Cisneros cites United States v. Collins, 40

F.3d 95 (5th Cir. 1994) in support of this argument.   However, a

careful reading of Collins shows that the theory of asset

depletion is only one means of showing the requisite connection

to interstate commerce.   It is not, as Cisneros contends, a

                                 8
required element of proof in every Hobbs Act case.      The depletion

of assets theory is generally applied to cases involving

businesses where it can be inferred that the depletion of the

business’s assets obstructs or delays the business’s operations

and thereby indirectly affects interstate commerce.     Id. at 99-

100.    On the other hand, as discussed above, extortion may have a

direct effect on commerce where it involves interstate travelers

or businesses engaged in interstate commerce.    Id. at 99, n. 15.

The government relied on this latter theory and produced

sufficient evidence to establish the nexus with interstate

commerce.

                                 D.

       Finally Cisneros argues that the district court erred in

increasing the base offense level by eight levels based on its

conclusion that Cisneros’ payment to Rodriquez “...”involved a

payment for the purpose of influencing...any official holding a

high level decision making or sensitive position. United States

Sentencing Guidelines Manual, Section 2C1.1(b)(2)(B).

       Rodriguez was the Assistant Chief Investigator in the DA’s

Office.    In this capacity, he was in charge of most

administrative matters in the office.    He was also responsible

for the supervision of approximately eight other investigators

and office clerks and oversaw most of the office budgetary

matters.    In addition to Rodriguez’s administrative duties, he

conducted and supervised investigations.    Rodriguez testified

                                  9
that in this capacity he was authorized to reduce charges

(including DWI’s) of offenders to lesser offenses.    The district

court’s finding that Rodriguez was in a “high-level decision

making or sensitive position” was not clear error.2



                            CONCLUSION

      Because the district court correctly rejected all of

Cisernos’ arguments, we affirm his conviction and sentence.

      AFFIRMED.




  2
   We decline to consider Cisernos’ argument raised for the first
time in a supplemental brief that the district court plainly erred
in assessing a two level enhancement for obstruction of justice.

                                10
