                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            DECEMBER 4, 2007
                               No. 07-10944                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 05-00137-CR-F-N

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                    versus

GEORGE DAVID SALUM, III.,

                                                     Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________

                              (December 4, 2007)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     George David Salum, III, (“Salum”) appeals his convictions for obstruction
of justice and computer fraud in violation of what is known as the “omnibus

clause” of 18 U.S.C. § 1503 and 18 U.S.C. §§ 1030 (a)(2)(B) and (c)(2)(B),

respectively. For the reasons discussed below, we affirm.

                                        I. Background

       Salum, a former police officer with the Montgomery Police Department

(“MPD”) was convicted of obstruction of justice and computer fraud for his role in

connection with the release of personnel records of former officer Raymond

DeJohn.

       DeJohn was a member of the Drug Enforcement Agency’s (“DEA”) task

force investigating Leon Carmichael and formerly served as an officer in the MPD.

Carmichael was charged with conspiracy to possess with intent to distribute 3,000

kilograms of marijuana. As part of his defense, Carmichael operated a website that

posted names and pictures of informants, witnesses, and agents that assisted with

the Carmichael case.1 In the Spring of 2004, the website showed photographs of

several potential witnesses, but stated “picture coming” next to DeJohn’s name.

By late August, 2004 DeJohn’s picture was on the website. The photograph was

DeJohn’s MPD photograph.

       The alleged purpose of the website was to gain information on the people


       1
          The district court denied a motion to order it removed from the internet. The propriety
of this order or the First Amendment concerns are not at issue in this appeal.

                                                2
listed on the site. A disclaimer on the website indicated that it was not intended to

intimidate witnesses. But DEA Agent Boreland testified at Salum’s trial that more

than one witness telephoned and expressed concern for their safety as a result of

the website, and the DEA installed an electronic surveillance system at DeJohn’s

residence because of the website. The website was very controversial and was

covered in the media.

      Exactly how the MPD photograph and other information got into the hands

of Carmichael is the foundation of the case against Salum. Carmichael’s defense

attorney, Stephen R. Glassroth, hired a private investigator, Johnny White, to

obtain DeJohn’s photograph and his police personnel file. White was also

instructed to obtain criminal histories of other government witnesses that were

expected to testify against Carmichael.

      Salum was a lieutenant with the MPD at the time of these events and knew

White. The MPD had access to the National Crime Information Center (NCIC)

and the Alabama Criminal Justice Information Service (ACJIS) databases. The

NCIC is run by the FBI. MPD rules and regulations limited the release of

NCIC/ACJIS and personnel files to only those authorized to have such

information. All officers received copies of these rules and regulations. In

addition, employees with access to NCIC/ACJIS databases had to undergo training



                                          3
and certification, which included information on the proper use of the system and

the proper dissemination of information. The system could be used for criminal

justice agency use only in the conduct of official business, which did not include

private investigations. Salum received training and certification.

      Johnny White had previous law enforcement experience but had not been in

law enforcement for several years at the time of the alleged offenses. Testimony at

trial suggests that this was widely known, although Salum denied he knew this.

      White recruited Salum to obtain DeJohn’s files from the MPD. White was

friendly with Salum and thought he could trust Salum to keep the request quiet.

Salum testified that White did not tell Salum why he needed the information, but

White testified that he told Salum it was for Carmichael’s case. Salum agreed to

help and when he did so, he did not ask for payment in return. According to

White, however, when Salum gave the information to White he asked for money

and asked White to remove Salum’s name from the top of the files.

      As far as compensation went—according to White—when Salum produced

the documents, White asked what he owed Salum and he replied with the figure of

$1,000 to divide between two other officers who helped him get the information.

Officer Jay King had copied the 244-page personnel file and Officer Shannon

Youngblood obtained DeJohn’s picture for Salum. (Significantly, Salum asked



                                          4
Youngblood if DeJohn was a DEA Agent when he asked for the picture. Further,

several other officers testified to helping Salum obtain the documents.) According

to Salum, he did not ask for money; instead White just gave it to him. Salum

testified that White gave him $400, of which Salum gave $200 to King and stated

that he intended to give $200 to Youngblood but did not have an opportunity to do

so.

      Salum testified that he did not know about the website nor did he know why

White wanted the information on DeJohn. The prosecutor asked White, “What did

Mr. Carmichael tell you he wanted to do to Raymond DeJohn?” White responded

that Carmichael wanted to obtain information to discredit DeJohn. Defense

counsel objected on hearsay grounds and because Carmichael could not be

cross-examined, but the court overruled the objection and permitted the testimony

to show motive and intent.

      The jury began deliberations at roughly 3 p.m. on the last day of the trial.

During the afternoon, the jury issued several questions to the court. First, it asked

for clarification on specific intent necessary for obstruction of justice. The court

referred the jury to the written instructions. Shortly before 7 p.m., the jury sent a

note to the court as follows: “We have made a decision on one of the counts but we

have not arrived at a unanimous decision on the other count. We feel that due to



                                           5
some very strong commitments to strong opposing views we do not see a

unanimous verdict forthcoming. Please advise. Jurors have stated that their minds

will not be changed.” Defense counsel requested a mistrial on the deadlocked

count. The court determined that an Allen charge would be proper.

      The court issued the following charge:

      Ladies and Gentlemen, I am going to ask that you continue your
      deliberation in an effort to reach agreement upon a verdict and dispose
      of this case. And I have a few additional comments I would like for
      you to consider as you do so. This is an important case. The trial has
      been expensive in time, effort, money and emotional strain to both the
      defense and to the government. If you should fail to agree upon a
      verdict the case will be left open and may have to be tried again.
      Obviously another trial would only serve to increase the cost to both
      sides and there’s no reason to believe that the case can be tried again
      by either side any better or more exhaustively than it has been tried by
      you. Any future jury must be selected in the same manner and from
      the same source as you were chosen and there’s no reason to believe
      that the case could ever be submitted to 12 men and women more
      conscientious, more impartial or more competent to decide it, or that
      more or clearer evidence could be produced. If a substantial majority
      of number are in favor of a conviction, those of you who disagree
      should reconsider whether your doubt is a reasonable one since it
      appears to make no effective impression on the minds of the others.
      On the other hand, if a majority or even a lesser number of you are in
      favor of an acquittal, the rest of you should ask yourselves again and
      most thoughtfully whether you should accept the weight and
      sufficiency of the evidence which fails to convince your fellow jurors
      beyond a reasonable doubt. Remember at all times that no juror is
      expected to give up an honest belief he or she may have as to the
      weight or effect of the evidence. But after full deliberation and
      consideration of the evidence in this case, it is your duty to agree upon
      a verdict if you can do so. You must also remember that if the
      evidence in the case fails to establish guilt beyond a reasonable doubt,

                                          6
      the Defendant should have your unanimous verdict of not guilty. You
      may be as leisurely in your deliberation as occasion may require and
      you should take all of the time which you may feel is necessary.

      Defense counsel again requested a mistrial, which the court denied. During

further deliberations, the jury again questioned the specific intent necessary for the

obstruction of justice offense. The court referred the jury to the written

instructions, and then asked whether they wished to continue deliberations that

evening or the following workday, or if they remained deadlocked. The jury

responded that it would continue deliberations that evening. At 9 p.m., the jury

returned a verdict of guilty on both counts. Salum was sentenced to 30 months

imprisonment.

      Salum now appeals on three grounds: He argues that (1) there was

insufficient evidence to establish the offenses of obstruction of justice (count 1)

and computer fraud (count 2); (2) the denial of the motion for mistrial for giving

the Allen charge was error; and (3) the district court erred by admitting testimonial

hearsay barred by the Confrontation Clause.

                               II. Standard of Review

      We review sufficiency of the evidence claims de novo. We “resolve all

reasonable inferences in favor of the jury’s verdict.” United States v. Eckhardt, 466

F.3d 938, 944 (11th Cir. 2006), cert. denied, 127 S.Ct. 1305 (2007). “The relevant



                                           7
question is 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.” Id. (quotation omitted); see also United States

v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). Credibility of a witness is within

the province of the jury. United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir.

1990). “[W]hen a defendant chooses to testify, [s]he runs the risk that if

disbelieved the jury might conclude the opposite of [her] testimony is true.”

United States v. Turner, 474 F.3d 1265, 1280 (11th Cir. 2007). “[A] statement by

a defendant, if disbelieved by the jury, may be considered as substantive evidence

of the defendant's guilt.” United States v. Brown, 53 F.3d 312, 314 (11th Cir.

1995). “Where some corroborative evidence of guilt exists for the charged offense .

. . and the defendant takes the stand . . . the Defendant's testimony, denying guilt,

may establish, by itself, elements of the offense.” Id. at 315. “This rule applies

with special force where the elements to be proved for a conviction include highly

subjective elements: for example, the defendant's intent or knowledge.” Id.

      Review of a district court’s decision to give an Allen charge is limited to

evaluating the coercive impact of the charge. The question this court addresses is

whether under the circumstances and language of the Allen charge the jury was

unduly coerced into reaching a verdict. United States v. Elkins, 885 F.2d 775, 783



                                           8
(11th Cir. 1989).

      Determinations of the admissibility of evidence are in the discretion of the

trial judge and will not be reversed by an appellate court unless it finds an abuse of

discretion. United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002).

                                   III. Discussion

a. Insufficient Evidence

                                       Count 1

      To prove obstruction of justice under the omnibus clause, the government

must show that the defendant (1) endeavored; (2) to influence , obstruct, or impede

the due administration of justice; (3) in a corrupt manner or by threats. United

States v. Barfield, 999 F.2d 1520, 1522 (11th Cir. 1993).

      “All the government has to establish [to prove the first element] is that the

defendant should have reasonably foreseen that the natural and probable

consequence of the success of his scheme would [obstruct the due administration

of justice].” United States v. Fields, 838 F.2d 1571, 1573 (11th Cir. 1988). The

second element is broad and has been interpreted to be such. United States v.

London, 714 F.2d 1558, 1566-1567 (11th Cir. 1983). It was “drafted with an eye

to ‘the variety of corrupt methods by which the proper administration of justice

may be impeded or thwarted, a variety limited only by the imagination of the



                                           9
criminally inclined.’” Id. Gathering information to assist a criminal defendant in

creating a website for the purpose of intimidating witnesses certainly falls within

this broad scope. The term “corrupt” has been interpreted to describe the specific

intent of the crime—that the defendant acted willfully. Barfield, 999 F.2d at 1524-

1525.

        At trial, White testified that he told Salum that he was working on the

Carmichael case and asked Salum to “look into the people on the website [to see] if

they had any criminal history with the city or if there was anything in DeJohn’s

personnel file that could have been negative to the defense as far as any police

misconduct or stuff like that.” Testimony at trial also established that the website

was well publicized in the Montgomery area. And Youngblood testified that

Salum asked Youngblood if DeJohn was a DEA agent. From these facts, it was

possible for the jury to conclude that Salum knew why he was researching these

individuals and providing the information to White.

        The jury also heard testimony that the individuals on the website feared for

their safety, and the jury could have inferred that at least one of the purposes (if not

the sole purpose) of the website was to intimidate the witnesses. Also damaging to

Salum is the fact that he testified and denied that he knew the purpose of the

investigation. By choosing to testify Salum ran the risk that the jury would



                                           10
disbelieve his statements, and his testimony was substantive evidence of his intent

and his guilt. See Brown, 53 F.3d at 315.

         A jury could have concluded from this evidence, therefore, that Salum knew

the purpose of his investigation, corruptly conducted the investigation, and could

reasonably foresee that the natural and probable consequence of the success of his

scheme would obstruct justice. Thus, sufficient evidence existed to convict Salum

of obstruction of justice.

                                        Count 2

         To prove computer fraud in violation of Sections 1030(a)(2)(B) and

(c)(2)(B), the government must prove that the defendant (1) intentionally accessed

a computer without authorization or in excess of his authorization, (2) thereby

obtaining information from a federal department or agency, (3) for the purpose of

commercial advantage or private financial gain or in furtherance of any criminal or

tortuous act in violation of the Constitution or laws of the United States or of any

State.

         Here, the evidence was sufficient to establish Salum’s guilt. The NCIC is

operated by the FBI and Salum did not dispute that he obtained information from a

department or agency of the United States. Testimony established that it was well

known that White was no longer in law enforcement. Salum admitted that he knew



                                           11
White worked as a private investigator and the jury could infer from Salum’s

testimony that he knew White was not a law enforcement officer. And although

Salum may have had authority to access the NCIC database, there was sufficient

evidence to establish that he knew White was working for Carmichael and that by

providing information from the NCIC database, Salum exceeded his authority by

accessing it for an improper purpose.

      A jury also could have reasonably concluded from the evidence that Salum

gave White the information for either Salum’s financial gain or in violation of the

law. First, the evidence established that White gave Salum money. White testified

that Salum demanded $1,000 to pay the two police officers that helped him—King

and Youngblood. But Salum testified that he received only $400 from White, that

he gave $200 to King, and that he was going to give the other $200 to Youngblood

but did not have a chance. King denied receiving any money from Salum. From

the inconsistency of the testimony, the jury could have inferred that Salum

intended to financially gain from providing the information to White. Moreover,

the jury could have inferred from Salum’s testimony the opposite of what he said.

      Second, the jury could have also concluded that Salum gave the information

to White in furtherance of a criminal act, namely, to interfere with the judicial

proceedings against Carmichael.



                                          12
       For the above reasons, we conclude that sufficient evidence existed for the

jury to find Salum guilty of computer fraud.

b. Allen Charge

       Salum next argues that the court erred by denying his motion for a mistrial

because the court’s Allen charge was coercive in light of the length of the

deliberations and considering the totality of the circumstances.

       The question the court addresses in reviewing a district court’s rendering of

an Allen charge is whether under the circumstances and language of the Allen

charge the jury was unduly coerced into reaching a verdict. United States v.

Elkins, 885 F.2d 775, 783 (11th Cir. 1989). When the district court does not poll

the jury prior to reading the Allen charge, we will reverse only if we conclude

under the totality of the circumstances that the charge was inherently coercive.

United States v. Chigbo, 38 F.3d 543, 545 (11th Cir. 1994); see also United States

v. Trujillo, 146 F.3d 838, 846 (11th Cir. 1998). In United States v. Scruggs, 583

F.2d 238, 240-41 (5th Cir. 1978)2, the former Fifth Circuit held that an Allen

charge given after four and a half hours of deliberations and which was read forty-



       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.



                                               13
eight minutes before the jury returned a verdict was not coercive. In Brooks v. Bay

State Abrasive Products, Inc., 516 F.2d 1003 (5th Cir. 1975), the jury deliberated

for three and a half hours and returned a verdict less than thirty minutes after

hearing the Allen charge. And in Chigbo, this court concluded

that thirty minutes between the charge and the verdict was not enough to find the

charge coercive.

      Here, we conclude that the charge was not inherently coercive. This court

repeatedly has upheld this pattern Allen charge. See Dickerson, 248 F.3d at 1050;

Trujillo, 146 F.3d at 846-47; Chigbo, 38 F.3d at 545-56. Moreover, the context in

which the charge was given does not appear to be coercive. The judge urged the

jurors to reconsider and gave them the choice of continuing deliberations that

evening, continuing the following day, or ceasing deliberations if the jury was

hopelessly deadlocked. The jurors had deliberated for roughly four hours before

the charge was given and they returned a verdict about two hours later. Given this

court’s precedent, we cannot find error with the Allen charge.

c. Hearsay and Confrontation Clause

      Finally, Salum argues that the district court erred by admitting testimony

that he claims is hearsay and violates the Confrontation Clause. At trial, the

prosecutor asked White “What did Carmichael tell you he wanted to do to



                                          14
Raymond DeJohn?” Salum’s counsel objected on both hearsay and confrontation

clause grounds, but the court admitted the statement “to show motive or intent.”3

       The court did not err by allowing White to testify. First, the statement was

not offered for the truth of the matter asserted. The judge admitted the statement

only for the purpose of showing White’s motive or intent. It does not matter

whether Carmichael really did want to discredit DeJohn. What matters is what

Carmichael told White. Therefore, the district court did not err by admitting the

statement. Further, even if this was error, it was harmless as White’s intent is

completely irrelevant to determine Salum’s intent because White testified that he

never told Salum why he wanted DeJohn’s information.

       Second, in order to violate the Confrontation Clause, a statement must be

testimonial and must be offered for the truth of the matter asserted. See Crawford

v. Washington, 541 U.S. 36, 59 n.9 (2004). Because White’s statement was

neither, there is no Confrontation Clause issue here.

                                       IV. Conclusion

       For the reasons above, we AFFIRM.




       3
         The parties dispute whether Salum properly objected on Confrontation Clause grounds
and, thus, disagree as to the proper standard of review. We do not need to address this matter
because the district court did not err under either plain error or abuse of discretion standard.

                                               15
