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

                                                 FILED
                                                                            March 6, 2009

                                       No. 08-60609                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

ALMA LEWIS

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:07-cr-00039


Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
       This is a direct appeal from a misdemeanor conviction for blackmail in
violation of 18 U.S.C. § 873. Appellant challenges the denial of a Rule 29 motion
for judgment of acquittal, arguing that there was insufficient evidence to sustain
the conviction. Appellant also challenges the district court’s exclusion of certain
evidence. Concluding that the evidence is sufficient to sustain the conviction
and that the district court did not abuse its discretion in excluding the evidence,
we AFFIRM.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60609

      I.    FACTUAL AND PROCEDURAL HISTORY
      Appellant Alma Lewis (Lewis), a veteran of the armed forces, filed a claim
pursuant to 38 U.S.C. § 1151 with the Department of Veterans Affairs (VA),
alleging that she had been injured by the negligent performance of VA doctors
during her hernia operation. The claim was denied, and Lewis filed a notice of
disagreement to begin the administrative appeal process. She requested her
medical records from the VA. Thereafter, she received the medical records of
two other veterans but not her own records. She delivered a copy of the records
to the local paper on the same day she received them.
      Lewis contacted several employees at the VA and was asked to return the
records. Lewis responded that she would not return the records unless they
expedited her case and she received a favorable decision. Lewis told one VA
employee that she knew someone at a newspaper and that she had enough
information in the other veterans’ records to commit identity theft. Several VA
personnel, including an assistant veterans service center manager and a staff
assistant spoke with Lewis about returning the records. Lewis talked about “the
damage she could cause by having them.”           Lewis called Leona Moye, a
management analyst in Washington, D.C., who answered calls for the Secretary
of the VA, and asserted that she “was going to keep those records until her
claims were processed” by the VA. Lewis told Moye that she was entitled to the
disability benefits from the VA.
      The VA contacted Special Agent John Ramsey at the Office of the
Inspector General and informed him that Lewis would not return the other
veterans’ medical records. Agent Ramsey called Lewis, and she admitted that
she had previously received the records, which contained “enough sensitive
information to reroute government checks for medications and basically to
commit identity theft, if she so desired.” However, Lewis told Agent Ramsey
that she no longer had the records and that she had already given them to the

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newspaper. Agent Ramsey then obtained a search warrant for Lewis’s house.
He searched her house when she was not at home and was able to recover the
records, which had been hidden underneath a pillow.
      A grand jury returned an indictment charging a single count of
misdemeanor blackmail in violation of 18 U.S.C. § 873, which provides that:
“Whoever, under a threat of informing, or as a consideration for not informing,
against any violation of any law of the United States, demands or receives any
money or other valuable thing, shall be fined under this title or imprisoned not
more than one year, or both.” More specifically, the indictment charged that:
            On or about December 14, 2006, in Harrison County in the
      Southern Division of the Southern District of Mississippi, the
      defendant, ALMA LEWIS, did unlawfully, willfully and knowingly
      demand a thing of value from the Department of Veterans Affairs
      as a consideration for not disclosing that the Department of
      Veterans Affairs had Wrongfully Disclosed Individually Identifiable
      Health Information, to-wit:       the defendant, ALMA LEWIS
      telephoned the Department of Veterans Affairs stating that in
      consideration for a favorable decision granting the defendant,
      ALMA LEWIS veterans benefit, she would not report the wrongful
      disclosure of other veterans’ health information to the Sun Herald,
      a local newspaper and a local television station, all in violation of
      Section 873, Title 18 United States Code.

      Lewis consented to have her jury trial presided over by a magistrate judge.
At trial, the government introduced the evidence previously set forth regarding
Lewis’s receipt of and refusal to return the other veterans’ records. Lewis,
testifying in her own defense, denied that she had told the VA personnel that she
would not take the records to the media if her claim was granted. She also
testified that she told them “I want you to give [me a favorable decision on my
claim] because I deserve it” and not “because you messed up and sent me
somebody else’s record.” The jury rejected Lewis’s testimony and unanimously
found her guilty as charged. The magistrate judge sentenced Lewis to two years



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of probation, with four months of home confinement and a $1,000 fine. The
magistrate judge denied her motion for judgment of acquittal brought pursuant
to Rule 29 of the Federal Rules of Criminal Procedure. Pursuant to 18 U.S.C.
§ 3402, Lewis appealed to the district court, which denied her claims of
insufficient evidence and evidentiary error. She now appeals to this Court.
              II.   ANALYSIS
                    A.    Sufficiency of the Evidence
      Lewis contends that the evidence was insufficient to sustain her conviction
for blackmail. The elements of the instant offense are: (1) demanding money or
other valuable thing from the victim; (2) under a threat of informing, or as a
consideration for not informing, against (3) a violation of a law of the United
States. 18 U.S.C. § 873; see United States v. Holmes, 110 F. Supp. 233, 235 (S.D.
Tex. 1953).
      The crux of Lewis’s argument is that because it is undisputed that she
gave the records to the newspaper prior to contacting the VA, she is not guilty
of blackmail under the statute. She thus argues that the district court erred in
denying her Rule 29 motion. When the sufficiency of the evidence has been
contested in a Rule 29 motion in the district court, we review the sufficiency of
the evidence to determine “whether a rational juror could have found the
elements of the offense proved beyond a reasonable doubt.” United States v. Kay,
513 F.3d 432, 452 (5th Cir. 2007) (internal quotation marks omitted), cert.
denied, --- U.S. ----, 129 S.Ct. 42 (2008).
      On appeal, Lewis is not arguing that the evidence was insufficient to
demonstrate that she made a threat to inform the newspapers of the VA’s breach
of privacy to obtain monetary benefits. Instead, her argument is that because
she had already carried out the threat, she had “no ‘quid’ with which to bargain
for the alleged illegal ‘quid pro quo.’” Lewis does not cite a single authority for
this proposition. It may be that Lewis is attempting to raise the defense of legal

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impossibility. Traditionally, although legal impossibility is a defense to a charge
of attempt, factual impossibility is not. See W. LaFave & A. Scott, Handbook on
Criminal Law § 60 at 438 (1972). “Legal impossibility occurs when the actions
which the defendant performs, or sets in motion, even if fully carried out as he
desires, would not constitute a crime.” United States v. Conway, 507 F.2d 1047,
1050 (5th Cir. 1975). “Factual impossibility denotes conduct where the objective
is proscribed by the criminal law but a circumstance unknown to the actor
prevents him from bringing it about.” Id. Here, the latter defense is clearly not
applicable because Lewis is not claiming that there were facts unknown to her
that thwarted her from completing the offense. Lewis has not shown the former
defense because, as explained below, she did complete the offense of blackmail
under § 873.1
       In United States v. Stevenson, the defendant was convicted of threatening
to assault a federal probation officer. 126 F.3d 662 (5th Cir. 1997). On appeal,
the defendant argued that the government had failed to prove he had the
necessary intent.       Id. at 664.     He argued that “his incarceration made it
impossible for him to carry out his threats toward” the probation officer. This
Court explained that the “key point is whether the defendant intentionally or
knowingly communicates his threat.” Id. As stated by the Ninth Circuit, the
“‘only intent requirement is that the defendant intentionally or knowingly
communicates his threat, not that he intended or was able to carry out his
threat.’” Id. (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265
(9th Cir. 1990)). This Court recognized that it had “stated a similar standard
regarding intent in the context of 18 U.S.C. § 871, criminalizing threats to the



       1
          We note that the continued viability of the impossibility defense is unclear. See
United States v. Farner, 251 F.3d 510, 512–13 (5th Cir. 2001) (noting that although “[w]e need
not hold that there can never be a case of true legal impossibility, . . . such a case would be
rare”).

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                                 No. 08-60609

President.” Id. (citing United States v. Pilkington, 583 F.2d 746, 757 (5th Cir.
1978)). Accordingly, “[a]ll the government had to show was that this threat was
intentionally communicated, not that the threat was credible or could be
immediately carried out.” Id. at 664–65; see also Commonwealth v. Keenan, 184
A.2d 793, 796 (Pa. Super. Ct. 1962) (explaining that “[w]hether a blackmailer is
in a position to carry out his threat in the event money is not paid is
immaterial”).
      In the case at bar, we likewise reject Lewis’s contention that the offense
of blackmail under § 873 requires that the government demonstrate that the
threat could be carried out. Moreover, the evidence is sufficient to sustain her
conviction for blackmail. As previously set forth, as relevant to this case, the
elements of the offense of blackmail are: (1) demanding money or other valuable
thing from the victim; (2) under a threat of informing, or as a consideration for
not informing, against (3) a violation of a law of the United States. 18 U.S.C. §
873. The government presented several witnesses who testified that Lewis
threatened to release the private medical records to the media if her claim for
benefits was not successful. The VA personnel testified that they verified that
she had the records by asking her to recite the social security numbers and other
confidential information. Thus, viewing the evidence in the light most favorable
to the verdict, a rational juror could have found the elements of the offense of
blackmail proved beyond a reasonable doubt.
            B.    Evidentiary Ruling
      Lewis next contends that the magistrate judge abused his discretion in
excluding the photographs of her abdominal infection, which was allegedly
caused by the VA doctors’ negligent performance of her surgery. She maintains
that one of her defenses was that she did not need to blackmail the VA into
granting her disability claim because it was meritorious and that the
photographs were an essential part of this defense. She contends that the

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government repeatedly referred to her disability claim and that the exclusion of
the photographs unfairly prevented her from further developing her claim.
       This Court reviews a district court’s decision to admit or exclude evidence
for an abuse of discretion. United States v. Mendoza-Medina, 346 F.3d 121, 127
(5th Cir. 2003). The erroneous admission or exclusion of evidence will not result
in a reversal unless the error was harmful. Id. Under this standard, there must
be a reasonable possibility that the exclusion of the evidence contributed to the
conviction. Id.
       The magistrate judge excluded the photographs because he ruled that they
were not relevant evidence.2          Evidence is relevant if it tends “to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” F ED. R.
E VID. 401. Relevant evidence is admissible; irrelevant evidence is not. F ED. R.
E VID. 402.    “The trial judge has broad discretion in ruling on questions of
relevancy.” United States v. Waldrip, 981 F.2d 799, 806 (5th Cir. 1993).
       Lewis sought to introduce the photographs into evidence to prove that she
was entitled to a favorable ruling on her disability claim. The Third Circuit’s
opinion in United States v. Coyle, which involves a challenge to a blackmail
conviction under § 873, offers some guidance with respect to this claim. 63 F.3d
1239, 1249 (3d Cir. 1995). In Coyle, the appellant argued that it was error for
the district court to deny his proposed instruction to the jury that he could not
be convicted of blackmail if he was entitled to the benefits demanded. Id. In
other words, Coyle argued that “something to which he was entitled could not
be ‘consideration.’” Id. The Third Circuit rejected this claim, explaining that


       2
          The magistrate judge also referred to Lewis’s failure to disclose the photographs prior
to trial as required in the pretrial order. This Court has held, however, “that the compulsory
process clause of the sixth amendment forbids the exclusion of otherwise admissible evidence
solely as a sanction to enforce discovery rules or orders against criminal defendants.” United
States v. Davis, 639 F.2d 239, 243 (5th Cir. Unit B Mar. 1981).

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“what is made unlawful by the blackmail statute is Coyle’s use of the offer not
to report the fraudulent activity or not to cooperate with the authorities as
leverage” against the victim. Id. We agree with the Third Circuit’s reasoning.
Although Coyle did not involve evidentiary error, the logic applies in the instant
case.   Here, even assuming arguendo that Lewis could show that she was
entitled to the award of benefits, because entitlement is not a defense to a
blackmail charge under § 873, such entitlement is not relevant. Accord State v.
Conradi, 60 So. 16, 21 (La. 1912) (holding that entitlement to money demanded
is not a defense to crime of blackmail); McKenzie v. State, 204 N.W. 60, 63 (Neb.
1925) (same); State v. Richards, 167 P. 47, 48 (Wash. 1917) (same). Thus,
Lewis’s potential entitlement to a favorable ruling on her disability claim was
not a defense to the blackmail charge. To the extent that she was seeking to use
her disability to support her testimony that she did not make the blackmail
threat, the magistrate judge had before it considerable oral testimony about her
injuries, which is not in dispute.     And such photographs would only be
cumulative evidence of the injuries not in dispute. Accordingly, the magistrate
judge did not abuse his discretion in excluding the photographs as irrelevant.
        For the above reasons, the judgment is AFFIRMED.




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