                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                 _______________________________

                           No. 96-20563
                 _______________________________


                    UNITED STATES OF AMERICA,

                                 Plaintiff-Appellee/Cross-Appellant,

                              versus

                         JOSEPH PANKHURST,

                                 Defendant-Appellant/Cross-Appellee.

_________________________________________________________________

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

_________________________________________________________________
                          July 21, 1997

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     The principal issue at hand is whether, prior to a sua sponte

downward departure, the district court must give FED. R. CRIM. P. 32

pre-sentencing notice to the Government.     Joseph Pankhurst appeals

his conviction under 18 U.S.C. § 201(b)(1)(A) for “corruptly

giv[ing] ... [$10,000] to [a] public official ... with ... intent

... to influence [an] official act”; he challenges both the jury

instruction describing the “official act” (“acceptance of an offer

by [Pankhurst] to purchase a loan being sold ... by the Resolution

Trust Corporation”) and the sufficiency of the evidence, especially

concerning his corrupt intent.    The Government cross-appeals from

the downward departure, in part because it was not given notice.

We AFFIRM the conviction, but VACATE and REMAND for resentencing.
                                       I.

     Pankhurst and his wife owned Atlas Oil Company.                     In early

1992,   Pankhurst,      through   Atlas       Oil,     acquired      Jetera   Fuels

Terminaling Corporation for only $2,500.               But, Jetera was burdened

with a $5.6 million debt on two loans from TexasBanc Savings (TBS),

with monthly payments of approximately $60,000 and with Jetera’s

property   as    security.      TBS   had     failed    prior   to    Atlas   Oil’s

acquisition of Jetera; the TBS loans were managed by the Resolution

Trust Corporation (RTC), which, inter alia, had the power to

foreclose on Jetera’s property in event of default.

     In mid-1992, although Jetera was not in default on either loan

and was profitable, Pankhurst, as chairman of Jetera, requested

that the RTC consolidate the loans and reduce the principal to

$1.75 million.      The RTC responded that the loans had been grouped

with others for sale, and that their terms could not be negotiated

then.   Later that year, Jetera defaulted on the loans.

     In response to the default, the RTC advised Pankhurst that it

would order an appraisal and environmental assessment of Jetera.

Pankhurst,      again   on   behalf   of    Jetera,     again     requested   loan

consolidation and reduction.

     In June 1993, Pankhurst, now on behalf of Atlas Oil Company,

offered to the RTC to purchase for $500,000 either the Jetera

property or the Jetera loans.               In response, Ronnie Hooks, a

contract employee for the RTC who was acting as senior asset

manager for TBS, met with Pankhurst at the RTC’s offices in

Houston, Texas.


                                      - 2 -
       Hooks advised Pankhurst at the meeting that the RTC had

received competing offers for the property securing the loans; that

Jetera’s appraised value was approximately $800,000; that the RTC

was receiving approximately 70% of the appraised value for similar

properties; and that, therefore, if Pankhurst increased his offer

from $500,000    to   $560,000,   it   might   be   accepted.   Pankhurst

increased his offer accordingly.        And, later in the discussions,

Pankhurst placed a stack of cash on the table.           At this meeting,

Hooks informed Pankhurst that he did not have the authority to

accept Pankhurst’s $560,000 offer to the RTC; in addition, he

neither accepted nor rejected Pankhurst’s offer of cash.

       Concerning the cash placed on the table, Pankhurst testified

that he had asked if an attorney would be necessary, and whether

Hooks knew anyone willing to act as a consultant during the

negotiations with the RTC; that he stated to Hooks that he had seen

advertisements about former RTC employees offering to work as

consultants; that he opened his briefcase in order to show Hooks

such an advertisement, stating that he had seen about “ten of

these”; and that some cash also happened to be in the briefcase,

because he was about to make a deposit and, therefore, a deposit

slip was bound to the top of the cash.         On the other hand, Hooks

testified that he understood the “ten of these” comment to be a

reference to ten similar piles of cash.

       Hooks reported Pankhurst’s actions concerning the cash to the

RTC.    An investigation ensued, with Hooks assisting the FBI.         In

recorded telephone conversations, Hooks and Pankhurst discussed


                                  - 3 -
different documents Pankhurst would have to submit to the RTC, and

the amount of Hooks’ “consulting fee”, which they set at $10,000.

     During these recorded conversations, Hooks told Pankhurst that

he did not want to meet at obvious places.           They met at a hotel;

Pankhurst then took Hooks to Pankhurst’s car.

     At the car, Hooks, wearing a recording device, stated that he

had more work to do to get Pankhurst the deal he wanted from the

RTC; that he had been afraid when Pankhurst first approached him

about the deal in the RTC offices; and that, within a few days, he

could obtain acceptance of Pankhurst’s offer to the RTC.

     At that point, Pankhurst said that he would pay Hooks half of

the $10,000 then and the other half when his offer to the RTC was

accepted.     He handed Hooks a binder labeled “corporate records”;

the binder contained cash.    Pankhurst gave Hooks part of the cash

and said he would keep the rest in the trunk of his automobile.

     Hooks delivered to the FBI the binder received from Pankhurst.

It contained $5,000 in cash.

     At Hooks’ request, the two men met two days later at the same

hotel. Again, Hooks was wearing a recording device and they met in

Pankhurst’s    car.    Pankhurst    handed   Hooks    a   letter   offering

$560,000, a settlement document, and a $2,000 earnest money check.

In turn, Hooks gave Pankhurst a letter accepting the offer, and

explained that Atlas Oil would be the purchaser and that the

transaction would probably close by the end of the month.             When

Hooks asked about job opportunities, Pankhurst suggested that Hooks




                                   - 4 -
work for him.     Pankhurst also gave Hooks the second $5,000 in a

brown manila envelope, telling him to “put this in your briefcase”.

     Pankhurst was arrested at the subsequent, videotaped meeting

he was instructed to attend to close the transaction.               He was

convicted by a jury of bribery of a public official, a violation of

18 U.S.C. § 201(b)(1)(A).       Pankhurst’s motions, during and after

trial, for judgment of acquittal were denied, as was his motion for

new trial.

     At sentencing, consistent with the recommendation in the

Presentence Report, the Government urged a guidelines sentencing

range of 51 to 63 months.       Instead, the district court, without

having given Rule 32 pre-sentencing notice of a possible downward

departure, ruled that the guidelines did not apply adequately to

Pankhurst’s offense and ordered a downward departure.           Because of

the resulting low offense level, and the fact that Pankhurst was a

first offender, probation was a sentencing option.            Pankhurst was

placed on probation for one year (with home confinement) and fined

$50,000.   The sentence was stayed pending appeal.

                                      II.

     Pankhurst challenges the description for the “official act”

used in the jury charge and claims there was insufficient evidence

for conviction, in part because of a claimed failure to prove

corrupt intent.   The Government challenges the downward departure,

contending   in   part   that   it    made   a   sufficient   objection   at

sentencing about not being given notice of a possible departure.




                                     - 5 -
                                            A.

     Pankhurst’s        one    count    indictment     contained         two   possible

grounds for conviction. He was charged with violating subparts (A)

and (B) of 18 U.S.C. § 201(b)(1), which proscribes:

            [d]irectly or indirectly, corruptly giv[ing],
            offer[ing] or promis[ing] anything of value to
            any public official ... with intent ...

            (A) to influence any official act; or

            (B) to influence such public official ... to
            commit or aid in committing ... any fraud ...
            on the United States....

18 U.S.C. § 201(b)(1).          But, the court did not submit subpart (B)

(fraud)     to   the    jury    as     a    possible   basis       for    conviction.

Accordingly, the only possible basis for conviction was an intent

“to influence an official act” (subpart (A)), not an intent to

effect a fraud on the United States (subpart (B)).

     Accordingly, the court instructed the jury that it could

return a guilty verdict only if it found, beyond a reasonable

doubt, both that Pankhurst “directly or indirectly gave, offered or

promised $10,000 to Ronald Hooks, a public official”; and that

Pankhurst    “did      so   corruptly       [defined   for   the    jury       as   “done

intentionally with an unlawful purpose”], with intent to influence

an official act by a public official”.                  The “official act” was

defined as the act described in the indictment; therefore, the

pertinent portion of the indictment was included then in the

charge:

            Pankhurst,   did   directly   and   indirectly
            corruptly give, offer, and promise ... $10,000
            ... to a public official, namely Ronald
            Hooks[,] ... with the intent to influence an

                                           - 6 -
          official act and to influence a public
          official, namely Ronald Hooks, to commit and
          aid in committing a fraud upon the United
          States. That is the acceptance of an offer by
          the defendant to purchase a loan being sold to
          the   public    by   the   Resolution    Trust
          Corporation.1

     The court’s proposed charge had not contained a definition or

description of the “official act” in issue.   At the earlier charge

conference, in his objections to that proposed charge, Pankhurst’s

counsel had contended, in a very general way, that the court should

add such a definition or description. But, other than referring to

the language in the indictment, Pankhurst’s counsel did not offer

a definition.   And, when the court stated that the description in

the indictment would constitute the definition for the “official

act”, Pankhurst’s counsel did not object to the inclusion of the

fraud language also contained there.   Restated, he did not request

that the fraud language be redacted.    In fact, he agreed to the

indictment, which included the fraud language, being used as the

description or definition of the official act.

     Now, however, on appeal with different counsel, Pankhurst

asserts that the court committed reversible error in its “official

act” instruction.   Pankhurst complains that, instead of granting

his “request[] ... [to] instruct the jury specifically what they

must find as the ‘official act’”, the court used the indictment for

that purpose.   Likewise, he complains, most belatedly, that the


     1
          Concerning the difference in punctuation surrounding
“that is” in the last sentence of the above-quoted transcribed
charge and in the indictment, see note 2, infra.


                               - 7 -
indictment contained language concerning fraud as a possible aim of

the payment to Hooks, making conviction on the fraud element

possible, even though the court refused to submit that element to

the   jury.   In   the   alternative,    Pankhurst   urges,   again   most

belatedly, that, because the fraud language was left in, it should

have been defined.

      But, again, Pankhurst did not object to the inclusion of the

fraud language, nor to the failure to define fraud, when the court

opted to use the indictment to describe the official act.              As

noted, Pankhurst had, however, requested earlier that the court

define the official act.    On the other hand, as also noted, he did

not provide or suggest a definition, other than agreeing to the

indictment’s language being incorporated for that purpose.

      Therefore, were Pankhurst challenging only the inclusion of

the fraud language, we would, at most, review only for plain error.

E.g., United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.

1994)(en banc).      (In fact, as discussed infra, based on the

colloquy at the charge conference, the issue presented is quite

close to being invited error.)2         However, because Pankhurst did

      2
          As for the inclusion of the fraud language, Pankhurst
claims also that it caused confusion and deprived him of a fair
trial.    The indictment was provided to the jury for its
deliberation. As indicated in note 1, supra, for the “official
act” description, the punctuation used in the indictment is
slightly different from that used in the transcript of that portion
of the jury charge when the district court, in response to
Pankhurst’s request for a definition of the official act, verbally
incorporated part of the indictment in defining the official act.
The pertinent part of the indictment reads: “with the intent to
influence an official act and to influence a public official,
namely Ronald Hooks, to commit and aid in committing a fraud upon
the United States, that is, the acceptance of an offer by the

                                 - 8 -
object generally at the charge conference to the failure of the

proposed charge to describe or define the official act, we will,

most dubitante, review, under our usual standard, the refusal to

grant the requested instruction. (The detailed review that follows

is also for the purpose of demonstrating further the total lack of

merit in this issue.)



defendant to purchase a loan being sold to the public by the
[RTC].”   (Emphasis added.)   As reflected in the portion of the
charge quoted in the text, supra, the transcript of the charge, as
read to the jury, uses a period, instead of a comma, between “upon
the United States” and “that is” and does not have a comma after
“that is”. It reads in part: “with the intent to influence an
official act and to influence a public official ... to commit ...
a fraud upon the United States.     That is the acceptance of an
offer....”

     Of course, the court reporter was simply transcribing the
trial judge’s verbal inclusion of this part of the indictment. The
version seen by the jury was in the indictment.       We note this
punctuation difference only as a hyper-technical partial response
to Pankhurst’s hyper-technical, semantic contention about jury
confusion.

     Pankhurst urges that the phrase “that is” caused confusion
because the act described after “that is” (acceptance of
Pankhurst’s offer for the loan) might be understood to refer to the
“influence fraud” portion of the charge, as opposed to the
“influence an official act” portion; and that, as a result, both
the indictment and charge were “vague and ambiguous”, making it
doubtful that the jury returned a unanimous verdict as to what the
“official act” was and, therefore, deprived him of his right to a
fair trial.

     We disagree. First, the pertinent portions of the indictment
and the charge are neither vague nor ambiguous. It is clear that,
in each, the act described after “that is” refers to the official
act as well as to fraud. And, in any event, Pankhurst did not
present this objection at trial; again, even if there were an
error, we would review only for plain error.      Once again, new
(appellate) counsel is raising a point that former (trial) counsel
apparently felt, correctly, was not a source of error. In sum,
there was no error.



                              - 9 -
     Jury charges are reviewed only for an abuse of discretion; we

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. McKinney, 53 F.3d 664, 676 (5th Cir.)

cert. denied, 116 S. Ct. 261 (1995).            If the trial court refuses a

requested instruction, the requesting party must demonstrate that

the proposal: (1) was a correct statement of the law; (2) was not

substantially covered in the charge as a whole; and (3) concerned

an important point in the trial such that failure to instruct the

jury on the issue seriously impaired the defendant’s ability to

present a given defense.     United States v. Smithson, 49 F.3d 138,

142 (5th Cir. 1995) citing, United States v. Chaney, 964 F.2d 437,

444 (5th Cir. 1992).

     Obviously,    with   respect    to    the    first    part    of   the    test,

Pankhurst    suffers   greatly   from     his    failure    to    submit      to   the

district court a specific definition of the “official act”.                         As

provided for by FED. R. CRIM. P. 30, he should have submitted a

written request; he did not even verbally offer a definition.

Needless to say, without a specific proposal to review, we cannot

say that the definition which Pankhurst may have wanted would have

been legally correct.     His failure to submit a definition to the

court deprives us of the very subject of the requested appellate

review.     Pankhurst’s mere (assumed) objection to the instruction

is, in short, ineffective, and, most arguably, brings our review of

this issue to a close.


                                    - 10 -
     But, in any event, the charge, as a whole, substantially

covered Pankhurst’s request.    Even assuming that the incorporation

of part of the indictment in the charge possibly suggested fraud to

the jury as a possible intended result of the charged bribe, fraud

was not a permissible basis for conviction, because the court

removed the   fraud   portion   of   the   indictment   from    the   jury’s

consideration.   Again, the jury was charged only under subpart (A)

(intent to influence official act).

     As stated, in reviewing jury instructions, we look at the

instructions as a whole.     McKinney, 53 F.3d at 676.         As given to

the jury, the factual allegation underlying inducing fraud was

exactly the same as that for influencing an official act: “That is

the acceptance of an offer by [Pankhurst] to purchase a loan being

sold to the public....”    This intent was the only one listed in the

indictment and the only one argued by the Government.          In the trial

court’s exercise of discretion, it determined that the intent

element of § 201(b)(1)(A) was satisfied, under the facts of this

case, if the jury found that Pankhurst had intended, through

payment of $10,000 to Hooks, to influence the RTC to accept his

offer.

     While the jury charge may have also erroneously included a

description of this intent as § 201(b)(1)(B) “fraud”, that will not

defeat the fact that such intent also satisfied the “official act”

prong of § 201(b)(1)(A).    See note 2, supra.     The Government still

had to prove, beyond a reasonable doubt, that Pankhurst intended to

influence the RTC’s acceptance of his offer.       Therefore, the jury


                                - 11 -
charge substantially covered Pankhurst’s request, as that request

would not have changed the burden on the Government or the possible

defenses available to Pankhurst.

     As noted, Pankhurst changed counsel after trial.             Concerning

this requested instruction issue, it is most enlightening that, in

closing    argument,   Pankhurst’s     trial   counsel   pushed   the   fraud

concept vigorously:

            They charged that Joe Pankhurst with intent
            corruptly gave $10,000 to Ronnie Hooks with
            the intent to influence an official act. And
            here is the official act: To commit and aid in
            committing a fraud upon the United States,
            that is the acceptance of an offer by the
            defendant to purchase a loan being sold to the
            public by the Resolution Trust Corporation.

            First place, it wasn’t being sold to the
            public, it failed right there.   But in the
            second place, he wasn’t trying to get to
            perpetrate a fraud.   He was trying to do a
            reasonable business deal...

(Emphasis    added.)     In   short,    Pankhurst    combined     fraud   and

influencing the official act.          As discussed below, this was his

apparent strategy.     Moreover, as noted, the defenses available to

Pankhurst were exactly the same as if the court had granted his

request and had therefore defined or described the official act in

some other way; Pankhurst still had to counter the Government’s

contention that he had intended, through a payment to Hooks, to

influence the RTC’s acceptance of his offer.

     It bears repeating that Pankhurst agreed to the indictment’s

being included in place of some other definition of the “official

act”.     As referenced earlier, we will not hold that agreement to

constitute invited error, because Pankhurst had, at least, earlier

                                 - 12 -
requested a definition, even though the request was very general,

if not vague, and even though he did not provide the desired

language.     But, as also reflected in this record, Pankhurst’s

subsequent    agreement     to   the   indictment’s       being    used      as   the

definition,    supplemented      by    his     comments   during       the    charge

conference, as illuminated by responding comments by the trial

judge, certainly cause the claimed error to border on invited

error.    This is demonstrated further by the fact that Pankhurst’s

post-verdict motions for judgment and for new trial urge, inter

alia, that the jury had to find fraud, and that the evidence was

insufficient   on   that    point.       In    essence,   what    we    are     being

presented with on appeal, in part, is appellate counsel’s quite

different view of the case from that of trial counsel.                       It goes

without saying that points raised at trial are the points that

control on appeal.

     In sum, pursuant to our three-part review in regard to refusal

of a requested instruction, there was no reversible error.                          In

fact, as discussed ad nauseum, Pankhurst’s appellate counsel have

tried, in large part most improperly, to present a point of error

where there was none.       They have, for the most part, attempted to

“rewrite history”.     They fail.         The record is clear; what took

place, took place.        With the instructions, to which he agreed,

Pankhurst’s trial counsel was given, and permitted to do, exactly

what he wanted, to argue exactly what he wanted to argue.

     In   responding   to    Pankhurst’s       contentions    about       the     jury

charge, the Government’s brief points out what is immediately


                                      - 13 -
obvious from reviewing the charge conference and a few related

documents.      The Government notes, inter alia, that Pankhurst did

not submit a proposed instruction prior to the conference; that the

trial court “essentially granted Pankhurst’s instruction request”;

that Pankhurst did not object to the included fraud language,

limiting     review     to    plain    error    on   that   point;    and    that,

“[c]onceivably, Pankhurst ‘invited’ the error of which he now

complains”.      Despite these serious, and correct, charges by the

Government, Pankhurst does not have one word in response in his

“Brief For the Cross-Appellee And Reply Brief For The Appellant”.

Instead, that brief deals only with the sentencing issue raised in

the Government’s cross-appeal.

       This lack of response concerning an issue that, based on our

exhaustive review, has no merit further fuels our concern about why

this    point     was        raised,    and,    especially,     how     it     was

presented/briefed.       Pankhurst’s appellate counsel have fallen far

short of making a fair, much less accurate, presentation of the

charge conference and related issues. They have presented an issue

totally lacking in merit.         Counsel are warned that such conduct in

the future may result in sanctions being imposed against them.

                                         B.

       In district court, Pankhurst preserved our usual standard of

review for his sufficiency issue by moving, at the close of the

Government’s case and at the close of the evidence, under FED. R.

CRIM. P. 29(a), for a judgment of acquittal, contending, inter alia,

that the evidence was insufficient to prove criminal intent beyond


                                       - 14 -
a reasonable doubt.       See United States v. Castaneda-Cantu, 20 F.3d

1325, 1329-30 (5th Cir. 1994); United States v. Knezek, 964 F.2d

394, 399-400 & n.14 (5th Cir. 1992). (After the verdict, Pankhurst

unsuccessfully moved for such judgment or for new trial and, later,

for reconsideration of the denial of that motion.)           Therefore, the

standard of review is whether the evidence, as viewed in the light

most favorable to the verdict, would permit a rational trier of

fact to find Pankhurst guilty beyond a reasonable doubt.              United

States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir.), cert. denied,

   U.S.         , 115 S. Ct. 2014 (1995); Castaneda-Cantu, 20 F.3d at

1330.

       A conviction under 18 U.S.C. § 201(b)(1)(A) requires: (1) that

Pankhurst directly, or indirectly, corruptly gave, offered or

promised anything of value; (2) to any public official; (3) with

intent to influence any official act.          United States v. Tomblin, 46

F.3d    1369,    1376   (5th   Cir.   1995).    The   evidence   showed   that

Pankhurst negotiated with the RTC to purchase the Jetera loans;

that, during these negotiations, he showed Hooks a stack of cash

and said an acceptance of his offer would be worth ten of them;

that, in surreptitious, but recorded, meetings, Pankhurst handed

Hooks a “corporate records” binder which instead contained $5000 in

cash, and then offered, and later delivered, the other half of the

$10,000 when he received acceptance of his offer to the RTC; and

that Pankhurst attempted to close his “deal” with the RTC.

       In short, there was sufficient evidence that money was offered

to Hooks, a public official, and that the goal was to influence the


                                      - 15 -
RTC’s acceptance of Pankhurst’s loan purchase offer, an official

act. In addition, as both shown above and discussed further below,

the evidence was more than sufficient regarding the requisite

“corrupt” intent in offering the $10,000 to Hooks.

     There was evidence that, without corrupt intent, Pankhurst was

offering the $10,000 to Hooks as some type of “consulting fee” (as

if that could be without such intent), and this view is supported

by the fact that the loan-purchase offer Pankhurst made to the RTC

could have been accepted by the RTC regardless of any influence on

the part of Hooks.      This is further corroborated by the fact that,

at the sham closing, Pankhurst was careful that none of the

documents contained any misstatements to the RTC.                 (Although this

meeting was videotaped, Pankhurst’s trial counsel failed, through

claimed oversight, to offer the tape in evidence.                 Post-trial, it

was submitted     to   the   court    by    Pankhurst’s     trial    counsel    for

consideration    on    sentencing.)           Regardless     of     these    facts,

Pankhurst’s claim fails for a number of reasons.

     First, despite complaining of an apparent lack of integrity

among   the   jury,    Pankhurst     does   not   contend    there     was   juror

misconduct or any external pressure on the jury to convict.                     He

points to a pre-sentencing letter to the trial judge from the jury

foreperson, which stated that “... we ha[d] no proof that Mr.

Pankhurst     intentional[ly]      walked     into   the     Resolution       Trust

Corporation’s office on the day in question and offered to bribe

Mr. Hooks”; that the reason the jury decided to convict was because

on Friday, when they were deadlocked at 9-3 to convict, they were


                                     - 16 -
told that, if they did not then reach a verdict, they would return

on Monday, and, as a result, the three holdouts quickly changed

their minds; and that, despite the professed lack of proof of

intent, the jury voted to convict because Pankhurst was wealthy and

had retained an expensive lawyer.

     This   does      not   rise    to    the     level    of   noticeable     juror

misconduct.        (At sentencing, the court advised counsel that the

letter had been submitted; Pankhurst’s lawyer had known of its

probable submission and his inquiry about the letter prompted the

court’s reference to it.         Despite suggesting that he might do so,

Pankhurst did not seek to move for a new trial based on it.

Reference to the letter, and the court’s deferring action on it

“until the matter arises”, are included in the court’s sentencing-

ruling, quoted       infra.)       In    any    event,    Pankhurst   raises   only

sufficiency, not juror misconduct; the points made about the jury

do not affect our sufficiency analysis.                  Restated, the objective

sufficiency standard obviously does not include examination of jury

deliberations or the jurors’ true feelings; instead, we examine the

evidence to determine whether it was sufficient for a rational jury

to convict.    Jaramillo, 42 F.3d at 922-23.

     As discussed, the evidence was more than sufficient.                       For

example, it included recordings of the two meetings in which

Pankhurst gave the $10,000 -- in $5,000 increments -- to Hooks.

These recordings include discussion about their first meeting, at

the RTC office, during which Pankhurst placed the money on the

table.        As     reflected     by     the     recording     of    the    second


                                        - 17 -
hotel/automobile meeting, Hooks stated: “But it scared me when you

walked into the office and ... laid that fee on the table and said,

‘hey, ... I need a consultant’ or something.         It scared me ... and

I had to give it some thought.”       Pankhurst replied: “Of course, ...

but who’s got time to do the romance deal and the little tap dance;

... here it is; and ... that’s the way I saw it.”

     Hooks testified that Pankhurst offered him $10,000 to act as

“consultant” throughout the negotiation process. The manner of the

transfer of the cash, at surreptitious meetings and hidden in a

“corporate records” binder and in a plain brown manila envelope,

point to Pankhurst’s corrupt intent.          Moreover, the fact that the

second half of the payment to Hooks was not to be made until after

Pankhurst received acceptance of his offer to the RTC points to the

fact that this was not a consultant fee, but a quid pro quo for the

RTC’s acceptance of Pankhurst’s offer.

     This was a classic case for a jury.           The competing evidence

may seem convincing to some, but it presents merely an alternative

to the decision a rational jury could reach.          The contention that

Pankhurst did not want to mislead the RTC in any of the closing

documents, Pankhurst’s testimony that he was attempting to hire

Hooks   as   a   “consultant”   and   that    he   thought   this   sort   of

transaction was legal and common, and the testimony about his good

character, do not render the other evidence insufficient as a basis

for conviction by a rational jury.           Under these circumstances we

cannot upset the verdict.       E.g., United States v. Pettigrew, 77

F.3d 1500, 1518 (5th Cir. 1996)(“The evidence need not exclude


                                 - 18 -
every reasonable hypothesis of innocence ... and the jury is free

to choose among reasonable constructions of the evidence.”).

     Finally, Pankhurst contends that the evidence was insufficient

to prove that the loan he was attempting to purchase was in fact

being sold to the public.     The issue is meritless.         The indictment

charged   that    the   official   act    which   Pankhurst    attempted    to

corruptly influence was the acceptance of his offer to purchase the

loan. The indictment states further, unnecessarily for purposes of

§ 201(b)(1)(A), that the loan had been offered for sale to the

public.   This description of the loan Pankhurst was trying to

purchase was surplusage; even if the evidence did not support a

finding that the loan was offered to the public, the statute was

satisfied and the conviction must stand.

     In the alternative, Pankhurst seeks a new trial.             We review

denials of such motions for abuse of discretion.              E.g.,    United

States v. Giraldi, 86 F.3d 1368, 1374 (5th Cir. 1996).                For the

reasons   given    above,   the    district   court   did   not   abuse    its

discretion.

                                     C.

     The challenge to the district court’s sua sponte downward

departure is premised on both a lack of notice and the basis for

the departure.     In urging that the departure should be affirmed,

Pankhurst counters, inter alia, that the Government failed to

object to the departure -- both to lack of notice and on the

merits.




                                   - 19 -
       As hereinafter discussed, we conclude, based on our review of

the record, that the Government’s lack-of-notice objection was

sufficient, even though it could - and should - have been far more

specific.    And, we conclude that, because the requisite Rule 32

notice of a possible downward departure was not given, we must

remand for resentencing; therefore, we do not reach whether the

departure would be upheld.             For our analysis, a most detailed

review of Pankhurst’s sentencing process is required.                          Moreover,

this    detailed   presentation        highlights       the    extremely         careful

attention    and   painstaking     analysis       given       the    merits      of   the

sentencing issue/departure question by the district court.

       The Presentence Report (PSR) recommended that Pankhurst’s

required base offense of 10 under U.S.S.G. § 2C1.1(a), for bribery

of a public official, be increased, as required by § 2C1.1(b)(2)

(“Specific   Offense      Characteristics”);        a   14-level          increase    was

recommended, on the basis that the requisite “benefit” to be

received    in   return    for   the    $10,000     payment         was    $5,053,000.

(Pursuant to § 2C1.1(b)(2), because the “benefit” exceeded $2,000,

reference was made to the table in § 2F1. (“Fraud or Deceit”); the

offense level is to be increased by 14 if the loss exceeds $5

million.)

       Because Pankhurst (a first offender) had a criminal history

category of I, the guidelines sentencing range was 51-63 months.

Pursuant    to   Rule   32(b)(4)(B),      the   PSR     commented         on    possible

sentencing adjustments; it recommended, inter alia, against a

reduction for acceptance of responsibility, and, critical to the


                                       - 20 -
issue at hand, stated that the probation officer did not have any

information concerning either the offense or Pankhurst which would

justify a departure from the guidelines’ sentencing range.

      In his pre-sentencing filing in response to the PSR, Pankhurst

stated that, in addition to prosecuting Pankhurst, the Government

had

           sought to ruin him financially in the business
           world.    That ruination has been extremely
           effective. This is a factor that has not been
           taken into consideration adequately by the
           Sentencing Commission and entitles [Pankhurst]
           to a downward departure.

The Government’s pre-sentencing response objected to Pankhurst’s

downward departure demand, stating with regard to the claimed

attempt to “ruin” Pankhurst that, as with all convictions, there

had been a press release.

      At sentencing, in support of the PSR’s recommendation that

the benefit was in excess of $5 million, the Government urged that

the loss was greater than that:   simply put, Pankhurst had offered

$560,000 for the loans to Jetera, for which slightly more than $5.6

million was owed, and which were secured by the Jetera property;

deducting that $560,000 from the approximate $5.6 million owed left

a benefit in excess of $5 million.

      As he had in his objections to the PSR, Pankhurst countered at

sentencing that there was no “benefit” (thus leaving the offense

level at 10), asserting that, even without the $10,000 payment to

Hooks, Pankhurst would have still acquired the loans/property for

the $560,000 offered. Along that line, Pankhurst pointed out that,



                               - 21 -
in fact, the RTC later accepted only $419,000 for the property, far

less than the $560,000 Pankhurst had offered.

     In the alternative, Pankhurst urged that, at most, the gain,

not benefit, would have been what Atlas Oil (the actual offeror --

owned by Pankhurst) might have realized later if it had both

acquired the property and sold it; using the offer of $560,000 and

the then-appraised value of $800,000, this sale would have resulted

in a gain of $240,000. But, Pankhurst argued that, because neither

event occurred, there was no “benefit” for guidelines purposes,

again leaving the offense level at 10.

     Having an offense level no greater than 10 was critical for

Pankhurst.    As    noted   supra,   for   a   “first     offender”    such    as

Pankhurst, and with that offense level, the sentencing court “may

substitute probation for a prison term”.         U.S.S.G. Ch. 1 Pt. A 4(d)

(1995).

     After hearing extensive and detailed argument concerning the

parties’   vastly   different   positions      as   to    the   §   2C1.1(b)(2)

“benefit”, the court stated:     “When I hear two intelligent lawyers

as thoroughly familiar with the facts as you two, in this much

disagreement, I just wonder if there is not a problem in the

guidelines.” (Emphasis added.) (The sentencing judge’s comments

were consistent with his views expressed three weeks earlier, at

the originally-scheduled      sentencing       hearing;    that     hearing   was

continued because of Pankhurst’s late receipt of the Government’s

response to his objections to the PSR.           Prior to continuing that

earlier hearing, the court heard similar argument by Pankhurst on


                                 - 22 -
why there was no “benefit”; the court indicated then that it was

open on the issue.)

     After further detailed argument, the court stated:

          We can stop right now on one point. I do not
          believe there was any actual gain. There was
          a possible remote potential gain, at least one
          level removed, that [Pankhurst] might have
          wound up with a corporation [Atlas Oil] with a
          piece of property that might be worth
          $800,000, that [Pankhurst] got for $560,000.

     Following further argument over “benefit”, vel non, the court

stated:

          You both are absolutely right up to a certain
          point.    I think this is a unique fact
          situation. I think what Mr. Pankhurst did was
          offer a bribe to do something that he could
          have done without a bribe. It was a, excuse
          the technical term, a dumb thing to do. And
          it constituted a violation of the law.

          What we are talking about now is what the
          appropriate punishment would be and whether
          the sentencing guidelines covers it. And I am
          slowly becoming convinced that because of the
          facts in this case, it is not something that I
          can find in the guidelines.     I am having a
          real struggle with it.

(Emphasis added.)

     Following yet further argument as to “benefit”, and apparently

taking hope in the court’s twice-expressed concerns that the

incident under consideration was not covered by the guidelines,

Pankhurst urged, for the first time, a downward departure on that

basis, claiming that the situation had “not [been] taken into

consideration   adequately”   by     the   Guidelines.    But,   as   the

Government   immediately   pointed    out,   this   departure-basis   was

totally different from the basis urged in Pankhurst’s pre-hearing


                               - 23 -
submission, discussed supra.            As noted, and as the Government

pointed out to the district court, Pankhurst had then claimed

entitlement    to    a   departure,    but     only   on   the   basis   that   the

Government     had   ruined   his     ability    to   do   business.      As    the

Government had discussed in its filed response to the earlier filed

departure demand, the Government pointed out to the sentencing

judge   that    Pankhurst     based    this     entitlement      claim   on     harm

supposedly resulting from a press release about his conviction.

     Following even more argument, the court ruled:

           All right. I have given this matter a great
           deal of thought. I have considered, with the
           probation officers, their various addenda and
           supplements.

           And I believe that the probation officers are
           correct, and I adopt their report, that the
           base offense level is ten; that the potential
           benefit to Mr. Pankhurst through his ownership
           of the [Atlas Oil] stock was most likely the
           difference between $560,000 and $800,000.

           I believe that $800,000 was the appraised
           value of the property at the time [Pankhurst]
           made the $560,000 offer, and therefore I
           believe that is the benefit [Pankhurst]
           intended to receive.

           With his criminal history category of one, his
           guideline imprisonment range at that point
           would be 27 to 33 months.

           His argument that he is entitled to a two
           level    decrease    for     acceptance   of
           responsibility is a close one.    But I have
           never heard him admit that he offered the
           money to Mr. Hooks for the purpose of
           influencing Mr. Hooks to do something.
           Certainly he would not admit that he offered
           it as a bribe. Therefore I cannot give him
           acceptance of responsibility.




                                      - 24 -
          I am not impressed with the letter from the
          foreperson of the jury [discussed supra]. We
          will take that up if the matter arises.

          But I do want to point out [that] page 7 of
          the latest version [1995] of the guidelines
          manual has this sentence in it[:]       [“]The
          commission of course has not dealt with the
          single acts of aberrant behavior that still
          may justify probation at higher levels through
          departures.[”]

          And what they are referring to is [U.S.S.G. §]
          5K2.0 and 18 [U.S.C. §] 3553. And pursuant to
          those provisions, I find that there exists
          mitigating circumstances of a kind and a
          degree not adequately taken into consideration
          by the Sentencing Commission in formulating
          the guidelines, and therefore the sentence
          should be different from that provided in the
          guidelines. Specifically, the difference, the
          increase over the ten level.

          I think the facts in this case are so peculiar
          and in such a strange state that the
          guidelines do not apply adequately in that
          increase.   Therefore I am going to sentence
          him at level 10.

     Pursuant to the resulting option given the court because of

that low offense level to place Pankhurst on probation, rather than

in prison, Pankhurst was given probation for one year, with a

condition of home confinement.    He was also fined $50,000.   Later,

the court remarked: “Mr. Pankhurst, because of the very peculiar

facts of this case, I am giving you a break which the Government is

going to be very upset about.    I may have sentenced you both to [an

appeal to the Fifth Circuit in] New Orleans.”

     The court had not put the parties on notice of this possible

-- and now just announced -- basis for departure.    But, unlike its

objection earlier in the hearing, when Pankhurst seized on this

basis for the first time, the Government did not object, after the

                                - 25 -
sentencing-ruling, on the ground that the court was departing

downward without giving Rule 32 pre-sentencing notice.              Instead,

at this point (post-ruling), the Government objected only to the

basis for the departure, and objected later to the court’s not

imposing sentence within the range recommended by the PSR.

     The judgment, entered six days after the sentencing hearing,

provided that the PSR was adopted, except that the court found a

lower “benefit” ($240,000 instead of $5 million), resulting in an

8, instead of a 14, level increase.              This resulted in a total

offense level of 18, with a sentencing range of 27 to 33 months, as

had been stated in the court’s verbal sentencing-ruling.                The

following   reason   was   then   given    for   the   downward   departure,

consistent with that given at sentencing and pursuant to 18 U.S.C.

§ 3553(b) and U.S.S.G. § 5K2.0: “The Court finds that the nature of

the offense, representing a single, criminal act, is a mitigating

circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission, pursuant to U.S.S.G.

5K2.0.”

     Before we can reach the merits of the basis for the departure,

we must consider the Government’s contention that it was denied the

requisite Rule 32 notice of the court’s intent to depart downward.

It is undisputed that the court did not give such notice to the

parties.    And, prior to sentencing, the only departure-basis urged

by Pankhurst was the claim that he was “entitled” to a downward

departure because the Government had “ruin[ed] him financially”.

But, as noted, after the court alluded twice at sentencing to a


                                  - 26 -
possible basis for a § 5K2.0 departure, Pankhurst’s counsel seized

upon it:

            I think that this is a proper case for a
            departure because the guidelines has not taken
            into    consideration      adequately      the
            circumstances of this case, and under the
            catchall provision of the guidelines and the
            Code, and I have cited that to Your Honor in
            the memorandum.

As also noted, the Government objected immediately:

            Judge, the government would object to a
            downward departure. [Pankhurst’s counsel]
            specifically said that the basis for his
            downward departure was because the Government
            had basically ruined his client’s ability to
            do business by sending an alleged press
            release to Dunn & Bradstreet.

     In short, the Government objected promptly to the fact that

the departure, alluded to by the court, was being requested by

Pankhurst on a new ground for which the Government had not received

pre-hearing notice.    Restated, at that point in the hearing, the

objection   alerted   the   court,   as   well   as   Pankhurst,   that   the

Government had not received notice of this new departure-basis,

later used by the court.        Such lack-of-notice, the Government

contends, violates the rule enunciated in United States v. Burns,

501 U.S. 129 (1991).

                                     1.

     Prior to reaching this contention, we must decide whether the

Government’s objection, including combined with those post-ruling,

is sufficient; that is, whether it presented/described adequately

a lack-of-notice ground. Pankhurst urges that it did not; and that




                                 - 27 -
we should, therefore, review only for plain error.             See United

States v. Hawkins, 87 F.3d 722, 730 (5th Cir. 1992).

     The objection to the basis seized by Pankhurst and ultimately

used by the court certainly alerted the court that the sentencing

hearing had moved to new territory for which the Government had not

been given notice.     As the court moved to this new territory off

and on during the hearing, both before and after the Government

objected to the new departure-basis when Pankhurst seized upon it,

the Government should have better articulated its lack-of-notice

objection, on the assumption that the sentencing court seemed

inclined increasingly to use that basis.

     But, surely, the court was aware when it ruled that it was

utilizing   a   departure-basis   sua    sponte,   without   having   given

notice; and that, because of a lack of notice from both the court

and Pankhurst, the Government had not had an opportunity to comment

consistent with Rule 32.    Part of the court’s awareness had to come

from the Government’s earlier objection when Pankhurst urged this

same -- new -- basis. On this record, the lack-of-notice objection

was sufficient.     See United States v. Knight, 76 F.3d 86, 87 (5th

Cir. 1996).     Accordingly, we turn to whether notice was required.

                                    2.

     Under Burns, Rule 32 requires that, before a district court

may depart upward, the defendant must have notice, either in the

PSR (see Rule 32(b)(4)(B)), or in a pre-hearing submission by the

Government, or from the court.      Our court so held prior to Burns.

See United States v. Otero, 868 F.2d 1412, 1415 (5th Cir. 1989).


                                  - 28 -
However, our court has never expanded the holdings in Otero and

Burns to the situation at hand -- the Government’s not receiving

notice of a possible downward departure.

     Nevertheless, at least four other circuits have held that the

rule applies to downward departures.     See United States v. Alba,

933 F.2d 1117 (2d Cir. 1991); United States v. Maddox, 48 F.3d 791

(4th Cir. 1995); United States v. Andruska, 964 F.2d 640 (7th Cir.

1992); United States v. Green, 105 F.3d 1321 (9th Cir. 1997).

Apparently, no circuit has held to the contrary.      We join those

circuits and hold that notice must be given to the Government

before a district court may depart downward.        This result is

mandated by Rule 32, Burns, and Otero.

     Rule 32 states that “the court must afford counsel for the

defendant and for the Government an opportunity to comment on the

probation officer’s determinations and on other matters relating to

the appropriate sentence....”    FED. R. CRIM P. 32(c)(1).   In other

words, the Rule provides that the Government is due the same notice

as is the defendant.

     For this very reason, Burns noted that, for the issue in that

case (pre-upward departure notice to a defendant), it would be

          equally appropriate to frame the issue as
          whether the parties are entitled to notice
          before the district court departs upward or
          downward from the Guidelines range.   Under
          Rule 32, it is clear that the defendant and
          Government    enjoy     equal    procedural
          entitlements.




                                - 29 -
Burns, 501 U.S. at 135 n.4 (emphasis added).     Along these lines,

Burns otherwise supports the application of its holding to the

Government, as well as the defendant, for a downward departure.

     Burns reasoned (as did Otero, 868 F.2d at 1415) that Rule 32

is intended to achieve focused adversarial development of the

issues pertinent to a particular sentence.       501 U.S. at 135.

Furthermore, the Rule explicitly gives the defendant the right to

comment on a particular departure before it is imposed; Burns

reasoned that, for this right to be meaningful, it must carry with

it the right to notice of a possible departure.    Id. at 136.   As

noted, the Government has the same comment-right; concomitantly, it

must have the same notice-right.

     The sentencing hearing for this case offers an excellent

example of why such notice is required, as well as the benefit that

will flow to the sentencing court as a result.   The district court

was troubled greatly by the facts at hand and extensively and most

insightfully developed the question.     Had the Government, and

Pankhurst, been on notice of the new, possible departure-basis,

they could have been of great assistance to the court through the

resulting/subsequent legal research, briefing, and argument.

     For example, as stated in the judgment, the court felt that

“the nature of the offense, representing a single, criminal act, is

a mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission, pursuant to

U.S.S.G. 5K2.0."   Had the parties been on notice, they could have

better assisted the court in determining, as a further example,


                              - 30 -
whether “the nature of the offense, representing a single criminal

act” had been considered by the Sentencing Commission in imposing

the § 2C1.1(a) base offense level of 10; the Government urges here

that this base offense level does reflect such consideration.

     As another possible aid to the court, the parties could have

explored, or developed further, the introductory commentary to

U.S.S.G. § 2C (“Offenses Involving Public Officials”):

          The Commission believes that pre-guidelines
          sentencing practice did not adequately reflect
          the seriousness of public corruption offenses.
          Therefore,   these   guidelines  provide   for
          sentences that are considerably higher than
          average pre-guidelines practice.

U.S.S.G. § 2 Pt. C Introductory Commentary.

     As yet another example, the extensive commentary to § 2C1.1

might have provided further ground that could have been developed

to assist the court.   And, finally, counsel would have been far

more able during the hearing to present and argue the other

relevant portions of the guidelines and the case law.

     Accordingly, due to the lack of notice, we must remand the

case to the district court for resentencing, including giving the

Government and Pankhurst notice and an opportunity to respond to,

and otherwise comment on, the noticed possible ground(s) for

departure.

                              III.

     For the foregoing reasons, the conviction is AFFIRMED; the

sentence is VACATED; and this case is REMANDED to the district

court for resentencing, consistent with this opinion.



                   AFFIRMED in PART; VACATED and REMANDED in PART


                             - 31 -
BENAVIDES, Circuit Judge, specially concurring.

      I concur in the judgment of the majority affirming appellant’s

conviction and remanding for resentencing.

      Appellant      contends      that    the       district    court     abused      its

discretion     by    incorporating        in   its    jury     charge    the    original

indictment.         He   argues   that     the   indictment       should       have   been

redacted to omit any reference to the government’s theory that he

sought to influence a public official to commit a fraud upon the

United States.       As the majority correctly observes, the proof at

trial focused on the government’s other theory, i.e, that appellant

sought   to   influence      an    official      act.        Compare     18    U.S.C.    §

201(b)(1)(A) with id. § 201(b)(1)(B).

      Because trial counsel did not object to use of the unredacted

indictment, review is for plain error. FED. R. CRIM. P. 52(b).                        Even

assuming that it was error to submit the original indictment to the

jury, and that the error was “plain” in the sense of being “clear”

or   “obvious,”      appellant      has    demonstrated         no    effect     on    his

substantial rights.         Cf. United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994).           Accordingly, this first claim fails.

      Appellant also argues that the district court erred in its

jury charge by failing to define the “official act” which he

allegedly attempted to influence.                     The court refused defense

counsel’s request to define the official act for the jury, instead

referring     the    jury   to    the    unredacted      indictment.           Appellant

contends    that     this   was   confusing      in     that    the     jury   may    have

concluded that the “official act” was the unspecified and unproven

“fraud” mentioned in the indictment.



                                        - 32 -
     Any confusion on this score was invited, if not manufactured,

by defense counsel in his closing argument to the jury.   Appellant

complains that the jury charge regarding the “official act” was

“ambiguous and confusing . . . in light of counsel’s arguments;”

yet it was defense counsel who described the “official act” as the

“fraud” alleged in the indictment.3    This circuit will not reverse

on the basis of invited error, absent manifest injustice.    United

States v. Sanchez, 988 F.2d 1384, 1392 (5th Cir. 1993).   There was

no such injustice in this case.        It is clear from the record

evidence and the comments of the district court that the official




     3
      Defense counsel argued to the jury:

     They charged that Joe Pankhurst with intent corruptly
     gave $10,000 to Ronnie Hooks with the intent to influence
     an official act.    And here is the official act:      To
     commit and aid in committing a fraud upon the United
     States, that is the acceptance of an offer by the
     defendant to purchase a loan being sold to the public by
     the Resolution Trust Corporation. . . . [H]e wasn’t
     trying to get to perpetuate a fraud. He was trying to do
     a reasonable business deal.

                              - 33 -
act which appellant allegedly sought to influence was the RTC’s

sale of the note.4

     Appellant’s sufficiency claims are meritless.   Accordingly, I

would affirm appellant’s conviction.   However, I would vacate and

remand his sentence for the reasons expressed by the majority.   I

therefore concur in the judgment.




    4
     As the district court explained to the jury at the beginning
of the trial:

     Mr. Pankhurst is charged with giving a $10,000 payment to
     Mr. Hooks to influence Mr. Hooks to sell him the note.
     That’s what the case, basically, is about.

                              - 34 -
