     Case: 12-20266       Document: 00512190890         Page: 1     Date Filed: 03/28/2013




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

                                                                            FILED
                                                                          March 28, 2013
                                     No. 12-20266
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LESLIE AIKENS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-466-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Leslie Aikens appeals his jury trial conviction of (1) aiding and abetting
the possession of more than five kilograms of cocaine with intent to distribute
and (2) extortion under color of law. He argues that the evidence adduced at
trial was insufficient to sustain his conviction.
       Because Aikens preserved a challenge to the sufficiency of the evidence by
filing a timely motion for judgment of acquittal under Federal Rule of Criminal
Procedure 29(c)(1), we review his claim is de novo. See United States v. Allison,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 12-20266

616 F.2d 779, 784 (5th Cir. 1980). We will uphold the verdict if a reasonable
trier of fact could conclude from the evidence that the elements of the offense
were established beyond a reasonable doubt. United States v. Percel, 553 F.3d
903, 910 (5th Cir. 2008). We “view[ ] the evidence in the light most favorable to
the verdict and draw[ ] all reasonable inferences from the evidence to support
the verdict.” Id. (internal quotation marks and citation omitted).
      To establish aiding and abetting the possession of cocaine with intent to
distribute, the Government had to prove that Aikens knowingly possessed a
substance that was cocaine with intent to distribute and that he associated with
the criminal venture, purposefully participated in it, and helped it to succeed.
United States v. Jimenez, 509 F.3d 682, 689 (5th Cir. 2007) (citations omitted);
United States v. Ortega Reyna, 148 F.3d 540, 543-44 (5th Cir. 1998). To show
that Aikens had the requisite knowledge, the Government had to prove that he
was aware that the purpose of the illegal activity was drugs rather than other
contraband. United States v. Mireles, 471 F.3d 551, 556 (5th Cir. 2006).
      Aikens challenges only whether there was sufficient evidence to establish
the knowledge requirement. He asserts that there was no evidence proving that
he knew that there were drugs in the car that he agreed to escort.
      The trial evidence established that Aikens, a Houston Police Department
officer, agreed to escort in his police unit a car driven by a confidential informant
who was cooperating with law enforcement as part of an investigation into public
corruption. Law enforcement agents placed in the informant’s car nearly seven
kilograms of cocaine. Aikens admitted in a post-arrest statement that he knew
that the car contained drugs. He specifically provided a written confession – the
truthfulness and voluntariness of which he does not dispute – in which he stated
that the informant asked him to escort a delivery of what he understood to be
drugs of an unknown type and quantity.
      The reliability of Aikens’s confession was corroborated by audio and video
recordings capturing his involvement in arranging and completing the escort.

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These recordings also provided circumstantial evidence supporting that Aikens
was aware that there were drugs in the car. The recordings capture, inter alia,
discussions in which Aikens and the informant, whom Aikens knew distributed
drugs, used code words affiliated with drug trafficking. See United States v.
Viscarra, 494 F.3d 490, 493 (5th Cir. 2007). The recordings also depict Aikens
being aware and having an understanding that the informant was recruiting
him to aid in the transportation of drugs. While Aikens may not have known the
specific kind of drug that he was escorting, we have held that a defendant need
not have knowledge of drug type and quantity for a conviction for possession
with intent to distribute. See United States v. Betancourt, 586 F.3d 303, 308-09
(5th Cir. 2009). The evidence was sufficient. See Percel, 553 F.3d at 910.
      To establish extortion under color of official right, the Government had to
demonstrate that Aikens “obstruct[ed], delay[ed], or affect[ed] commerce or the
movement of any article or commodity in commerce, by robbery or extortion” or
attempted or conspired to do so. 18 U.S.C. § 1951(a). The Government may
prove this offense by showing that Aikens “[took] a fee, unlawfully, under color
of his public office, in return for performance or nonperformance of an official
act.” United States v. Wright, 797 F.2d 245, 250 (5th Cir. 1986).
      Aikens argues that the Government failed to prove extortion under color
of official right because there was no evidence that he explicitly requested that
the informant pay him money in exchange for escorting the vehicle.           An
affirmative act of inducement by a public official, such as an express demand or
a request, need not be proven to establish a violation under § 1951(a). Evans v.
United States, 504 U.S. 255, 256-58 (1992). The trial evidence showed that
Aikens accepted $2,000 from the informant in exchange for escorting the vehicle;
Aikens’s passive acceptance of payment in exchange for his assistance is
sufficient to satisfy the element of inducement for purposes of § 1951. See id.;
Percel, 553 F.3d at 910.



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      In addition, Aikens contends that the district court erred by not granting
him a downward departure based upon the defense of “sentencing entrapment.”
He alleges that the nature of the illegal conduct and the amount of cocaine
placed in the vehicle were solely determined by law enforcement.
      The claim that the district court erred by failing to grant a new trial based
on “sentencing entrapment” is belied by the procedural history of the case;
Aikens successfully withdrew his motion for a new trial before the district court
rendered a ruling and, thus, there is no basis for him to allege that the district
court wrongly failed to grant a new trial. To the extent that Aikens argues that
the district court erroneously denied his request for a downward departure on
the basis of “sentencing entrapment,” this claim also fails. Because Aikens does
not allege that the district court committed an error of law by mistakenly
believing that it lacked authority to depart downwardly on the basis of
“sentencing entrapment,” we lack jurisdiction to consider his argument. See
United States v. Barrera-Saucedo, 385 F.3d. 533, 535 (5th Cir. 2004); United
States v. Cooper, 274 F.3d 230, 248 (5th Cir. 2001).
      Finally, we have not decided whether “sentencing entrapment” is a viable
defense to a sentence and, thus, Aikens has not shown that the district court’s
failure to impose a more lenient sentence on this basis rendered his sentence
unreasonable. See United States v. Jones, 664 F.3d 966, 984 (5th Cir. 2011), cert.
denied, 132 S. Ct. 2728 (2012). Even if the defense were a viable basis on which
to challenge a sentence, Aikens has not alleged any facts showing that he was
persuaded to commit a greater offense than he otherwise was predisposed to
commit or that the conduct of law enforcement officers in the instant case was
overbearing or outrageous. See id. We have rejected “sentencing entrapment”
arguments similar to those raised by Aikens. See United States v. Tremelling,
43 F.3d 148, 151-52 (5th Cir. 1995). He has not alleged any basis upon which his
involvement in escorting seven kilograms of cocaine was not conduct that the
district court properly considered in determining his sentence.
      AFFIRMED.

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