Revised February 27, 2003

                          UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT
                                    _____________

                                         No. 01-40105
                                         ____________

                                    United States of America
                                                     Plaintiff-Appellee,

                                              versus

                          Jose Marcelino Rubio, Sr., a.k.a. “Pinchino”;
                                  Gregorio Jesus Castaneda
                                                   Defendants-Appellants,

                        ________________________________________

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

                                        February 7, 2003

Before DAVIS, BENAVIDES, DENNIS, Circuit Judges

W. EUGENE DAVIS, Circuit Judge

       Appellants, Jose Marcelino Rubio, Sr. (“Rubio”) and Gregorio Jesus Castaneda (“Castaneda”)

a/k/a Jesse Castaneda, appeal their convictions for extortion and conspiracy to commit extortion

under 18 U.S.C. §§ 2 and 1951 (the “Hobbs Act”) on numerous grounds. For the reasons that

follow, we affirm.

                                                I.

       The government produced evidence tending to show that between July 1992 and 1999 Rubio

and Castaneda participated in a scheme to assist numerous arrestees in Webb County, Texas to obtain


                                                1
favorable dispositions of their cases in return for money. The crimes for which these individuals were

arrested varied and included charges for narcotics violations, driving while intoxicated (“DWI”),

unlawful carrying of a weapon, unauthorized use of a vehicle, and credit card abuse. Certain jailers

in Webb County informed many of these arrestees of local bail bondsmen who could help them

dispose of their cases. These bondsmen knew certain Assistant District Attorneys (“ADAs)” in the

Webb County District Attorney’s Office (“DA’s Office”) and/or their investigators who were willing

to reduce charges or dismiss cases in return for money. The bondsman would set a fee for fixing the

case, take money from the arrestee, give the ADA or investigator his cut, and pocket the rest.

       Castaneda and Rubio had different roles in this scheme. Castaneda was a bail bondsman who

owned Century Bail Bonds. Castaneda used his connections with both investigators and ADAs to

help his clients secure favorable dispositions of their cases. With the help of two investigators,

Agustin Mendoza (“Mendoza”) and Juan Alfonso Rodriguez (“Rodriguez”), and others in the DA’s

Office, Castaneda secured reduced charges, probationary sentences, pretrial diversion, and recovered

seized vehicles for his clients. For this assistance, Castaneda’s clients gave him thousands of dollars

and other valuables, portions of which were shared with the officials.

       Rubio used a number of techniques to extract money from persons after their arrests. He was

the father of Joe Rubio, Jr., the Webb County District Attorney, and used this position to convince

arrestees that he was able to help them dispose of their cases. At all times during the course of this

scheme, he also held positions in Webb County.        Rubio was the director of the Webb County

Detention Center from 1985 through 1993 and in this capacity carried a badge issued by the Sheriff’s

Department which he sometimes flashed in a show of authority to arrestees. In 1994, Rubio was

commissioned as an investigator for the Zapata County District Attorney’s Office and remained in


                                                  2
this position until 1999.

        Rubio independently approached arrestees with promises that, in return for cash, he and his

friends could help them avoid jail time. Rubio’s nephew, Jose Juan Rubio (“Juan Rubio”), and

Rubio’s son, Carlos Manuel Rubio (“Carlos Rubio”), also referred arrestees to Rubio for assistance.

Rubio worked with ADAs, Ernesto Cavazos (“Cavazos”) and Ramon Amado Villafranca

(“Villafranca”), and investigators, Rodriguez, Mendoza, and Domingo Noe Dimas (“Dimas”), to

obtain prosecutorial concessions for the arrestees from whom he had accepted payments. Rubio paid

these ADAs and investigators a cut of the money he collected from the arrestees.

        In May 2001, Rubio and Castaneda were charged in a second superceding indictment with

conspiracy and substantive counts of obstructing, delaying and affecting commerce through extortion

in violation of the Hobbs Act. Cavazos, Villafranca, Mendoza, Rodriguez, Dimas, Juan Rubio, and

Carlos Rubio were also charged in this same indictment. Rubio, Castaneda, Mendoza, and Rodriguez

were tried jointly. Rubio was convicted on the conspiracy count and six of the substantive counts.1

Castaneda was convicted of all crimes with which he was charged.

        In this appeal, Rubio and Castaneda challenge their convictions on a number of grounds: (1)

that the district court constructively amended the indictment to charge Rubio as a public official, (2)

that the district court erred in instructing the jury that a jailer is a public official under the Hobbs Act,

(3) that the district court abused its discretion in limiting counsel’s closing arguments, (4) that the

crimes for which Rubio and Castaneda are convicted are not within the reach of the commerce clause

and that the district court improperly charged the jury with regard to their crimes’ effect on


        1
          Mendoza and Rodriguez were also convicted; however, at the time this appeal was
lodged, they had not been sentenced for their crimes. Accordingly, they have not joined Rubio
and Castaneda in this appeal.

                                                     3
commerce, (5) that the district court abused its discretion in allowing certain expert testimony, (6)

that the district court abused it discretion in failing to grant Castaneda’s Motion to sever his trial, and

finally (7) that there is insufficient evidence from which to convict either Rubio or Castaneda. We

address each of the appellants’ arguments in turn.

                                                    II.

        Rubio first argues that the district court constructively amended the indictment with regard

to the substantive counts against him by instructing the jury that jailers, due to their status as peace

officers, are public officials under the Hobbs Act. “A constructive amendment occurs when the jury

is permitted to convict the defendant upon a factual basis that effectively modifies an essential element

of the offense charged.” United States v. Holley, 

, 912 (5th Cir. 1994)(internal quotation

and citation omitted). A co nstructive amendment violates the defendant’s right under the Fifth

Amendment to a grand jury indictment.

        Even if the district court constructively amended the indictment by instructing the jury that

a jailer could be considered a public official for purposes of the Hobbs Act, Rubio did not object to

the charge and concedes that a plain error analysis applies. Under Rule 52(b) of the Federal Rules

of Criminal Procedure, this court may correct the error only if it is both “plain” and it “affects

substantial rights.” United States v. Olano, 

, 732, 113 S. Ct. 1770,1777 (1993).

However, even if these conditions are satisfied, we need only correct a forfeited error that seriously

affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano,

, 736.

         Under the Hobbs Act, one of the elements of extortion is that property be obtained from




                                                    4
another “under the color of official right.”2 In order to prove t his element, the government must

prove that a public official obtained payment to which he was not entitled. United States v. Stephens,

, 429 (5th Cir. 1992). When a defendant holds an office, it is not necessary that the

person from whom the money was taken be aware of the extortionist’s official position as long as the

victim believes that the individual had the power to carry out the threat or promise made to the

victim. 

person who holds himself out as a public official is also acting “under the

color of official right” even though he actually holds no official position. Thus, in order to convict

Rubio of extortion under the Hobbs Act, the government had to show that he was a public official,

that he held himself out as a public official, or that he paid a public official to fix the arrestees’ cases.

        Rubio contends that the indictment charged that he acted in a private capacity rather than an

official capacity. Rubio assert s that the language of the indictment shows that the government

presented the case to the grand jury on an aiding and abetting theory, relying on the fact that Rubio

paid cert ain ADAs and/or their investigators to meet the “color of official right” element. Rubio

argues that because the government could not prove that any ADA or investigator was ever paid, the

government changed its theory of the case to assert that Rubio was himself an “official” acting “under

the color of official right” so as to meet that element of the offense.

        The government argues that the charge did not expand the indictment. Count 1, which


        2
          The Hobbs Act reads in pertinent part as follows:
        (a) whoever in any way or degree obstructs, delays, or affects commerce or the
        movement of any article or commodity in commerce, by robbery, extortion or
        attempt or conspires so to do, . . . shall be fined under this title or imprisoned not
        more than twenty years, or both.
        (b) As used in this section --
                (2) The term “extortion” means the obtaining of property from another,
        with his consent, . . . under the color of official right. (Emphasis ours).


                                                     5
charges all of the defendants with conspiracy, describes the capacity in which each defendant acted

in that conspiracy. Count 1 describes Rubio as the father of the DA and a former Webb County

deputy sheriff; it does not assert that he was also an investigator for the DA’s office in Zapata County

or a jailer during the period in which the conspiracy and substantive offenses were alleged to have

taken place.3 Rubio argues that the substantive counts refer back to this description of his role even

though there is no direct reference to it.

       Counts 3, 7, 8, 9, 10 and 18, (the “Substantive Counts” of conviction) charging Rubio and

others o f actually affecting commerce through extortion do not allege the roles of the defendants.

However, the Substantive Counts at issue in this appeal, such as Count 3, state that the persons

charged were acting both as principals and accomplices; that they aided and abetted each other and

also make references to a “respective office” held by these defendants.4 The reference to an office


       3
           Paragraph 1 of Count 1 reads:

1. Jose Marcelino Rubio, Sr., was a resident of Laredo, Texas. He used his influence, as the
father of the Webb County District Attorney and as a former Webb County deputy sheriff, to
provide and attempt to provide dispositions of criminal cases in Webb County in exchange for
money.
       4
           Count 3 reads:

       From in or about June 1997 through July 1997, in the Southern District of Texas ad
elsewhere, and within the jurisdiction of this Court Defendants,

                 JOSE MARCELINO RUBIO, SR. and AUGUSTIN MENDOZA,

each aiding and abetting the other did knowingly, willfully and unlawfully attempt to and did
obstruct, delay and affect commerce as that term is defined in Title 18, United States Code,
Section 1951 (b) (3), by means of extortion in that the defendants did obtain and attempt to obtain
payments of money that were not due to them or their respective office and to which they nor
their respective office was entitled, in that they received approximately $1,500 to provide or
attempt to provide a disposition of a Driving While Intoxicated case (hereinafter to as D.W.I.)
From a criminal defendant whose consent was induced under the color of official right. In

                                                   6
suggests that Rubio held an official position, without specifying any particular position. Because of

these references, the district court was entitled to read the indictment as alleging that Rubio held an

“office.” To establish Rubio’s guilt on the conspiracy count, the government was required to

establish that one of the conspirators acted under color of his office. United States v. Box, 

, 351 (5th Cir. 1995). The action of the ADAs and investigators in reducing or dismissing charges

was the central “official” action that allowed the scheme to succeed. It is therefore understandable

that the government did not allege other official action in the conspiracy count. Instructing the petit

jury regarding Rubio’s various offices would not constitute an amendment or expansion of the

indictment. Rubio’s argument therefore must fail.

                                                  III.

         In a related argument, Rubio contends that the trial court erred in instructing the jury that a

jailer is a public official for purposes of the Hobbs Act. Rubio failed to object to this charge.

Accordingly, our review is limited to plain error. United States v. Jimenez, 

(5th Cir.

2001).

         Rubio argues that a jailer is no t considered a peace officer under Texas statutory law and,

thus, is not a public official for purposes of the Hobbs Act. However, the Hobbs Act preserved the

common law definition of extortion. United States v. Tomblin, 

, 1383 (5th Cir. 1995);

Evans v. United States, 

, 259, 

, 1885 (1992). Thus, the district court



violation of Sections 1951 and 2.

With the exception of details of dates, accomplices, monetary amounts received, and charges
fixed, the language used in the other Substantive Counts for which Rubio was convicted is
identical to this language.


                                                   7
was not limited exclusively to those individuals recognized as peace officers under Texas statutory

law but, instead, could charge the jury consistent with a common law definition of public official. At

common law, jailers have been long recognized as public o fficials subject to extortion laws.5

Therefore, the district court committed no error, plain or otherwise, by instructing the jury that a

jailer is a public official for the purposes of the Hobbs Act.

                                                  IV.

       Rubio argues next that the court erroneously limited his closing argument by precluding him

from arguing that the government was required to prove that any payments the arrestees made were

made because of the public office the recipient held.

       Our review of the record reveals that the court did not limit counsel’s argument in this

respect. Counsel was permitted to argue that Rubio was not a public official and no one believed he

was a public official, even when he showed his badge. He argued that it was not enough for someone

to accept money to do what a layman could do; they had to corrupt the office. Counsel never

informed the court of an argument he wanted to make but coul d not make because of the court’s

instructions. Moreover, Rubio does not explain to us what arguments the district court prevented

him from making. This argument is meritless.

                                                  V.

       Both Rubio and Castaneda challenge the district court’s ruling that, as applied to their cases,

the Hobbs Act is within Congress’s power to regulate commerce. Applied constitutional challenges



       5
         See James Lindgren, Article: The Elusive Distinction between Bribery and Extortion:
From the Common Law to the Hobbs Act, 35 UCLA L. Rev. 815 (1988)(detailing the history of
common law of extortion) (cited with approval by this court in United States v. Tomblin, 

, 1383).

                                                   8
are reviewed de novo. United States v. Jennings, 

, 800 (5th Cir. 1999) Rubio and

Castaneda also argue that there was insufficient evidence of a relationship to commerce to support

their convictions under the Hobbs Act. This issue is reviewed for sufficiency of the evidence. United

States v. Villafranca, 

(5th Cir. 2001).6 Because the sufficiency challenge is subsumed

by the constitutional challenge, we examine them together. 

Cast aneda argue specifically that, in light of the Supreme Court’s opinions in

United States v. Lopez, 

, 

, (1995); Jones v. United States, 

,

(2000); and United States v. Morrison, 

, 

(2000),

prosecutors can not aggregate charged conduct with like conduct and thereby prove that an activity

has a substantial affect on commerce. Appellants assert that the charged conduct had no substantial

effect on interstate commerce and that the Hobbs Act as applied to their cases is, therefore,

unconstitutional.

       With regard to most of the challenged counts against the defendants, our recent opinion in

United States v. Villafranca controls. In United States v. Villafranca, we addressed the commerce

clause challenges of Ramon Villafranca another defendant charged with Rubio and Castaneda.7 As



       6
           In a related argument, Castaneda challenges the jury charge regarding his conduct’s
affect on commerce. In the challenged charge, the district court instructed the jury on what
activities constitute interstate and foreign commerce. The court then charged that the defendant’s
conduct need not substantially affect interstate or foreign commerce as long as the conduct would
substantially affect interstate or foreign commerce if repeated many times over. We have
approved of this language on a number of occasions. United States v. Jennings, 

,
800; United States v. Robinson, 

(5th Cir. 1997), cert. denied, 

, 

, 

(1998); United States v. Miles, 

, 241 (5th Cir. 1997).
Thus, Castaneda’s argument is foreclosed by circuit precedent.
       7
        Though Villafranca was charged in the same indictment, he was tried separately from
Castaneda and Rubio.

                                                 9
in this case, Villafranca took bribes to fix cases for a number of arrestees facing drug charges. We

held that interfering with or facilitating drug trafficking is sufficient to create an affect on interstate

commerce because drugs are traded on the international market. United States v. Villafranca, 

, 378.

        In the present case, most of the counts involve extorting money to fix drug trafficking

charges. One of the counts charged that Rubio extorted money to fix a charge of credit card abuse.

This count also involved extorting money to fix a charge of unauthorized use of a vehicle which was

used by the arrestee to cross the United States border into Mexico and return with methadone. Under

United States v. Villafranca, the government established a sufficient nexus to commerce in these

counts to overcome appellants’ constitutional challenge and the Hobbs Act sufficiency challenge.

        While the vast majority of the counts against Rubio and Castaneda are controlled by

Villafranca, others involve the extortion of money to provide favorable dispositions of DWI offenses.

In United States v. Wright, 

(5th Cir. 1986), this court found that the requisite nexus

to commerce existed where extortion charges under the Hobbs Act involved failure to prosecute

drunk drivers. In United States v. Wright, the court relied on expert testimony that non-enforcement

of DWI laws results in more alco hol related accidents and less highway safety to support its

conclusion that the extortion affected interstate commerce.

        In this case, as in Wright, the government’s expert testified that drinking and driving is likely

the major factor in highway accidents. He stated that the high risks can be reduced by treating the

drinking driver or by suspending or revoking driving privileges but that failure to prosecute drunk

drivers encourages more drunk driving and jeopardizes highway safety.

        Though United States v. Wright was issued prior to the Supreme Court’s opinions in Lopez,


                                                    10
Jones, and Morrison, we agree with the Eleventh Circuit’s post-Lopez decision in United States v.

Castleberry, 

(11th Cir. 1997), that there is a sufficient nexus to commerce to permit

jurisdiction under the Hobbs Act.

       Based on the forgoing, we are satisfied that as applied to each of the counts against Rubio and

Castaneda the Hobbs Act does not exceed Congress’s power to regulate commerce.

                                                VI.

       Castaneda also challenges the admission of the expert testimony of Dr. Robert Voz, regarding

the effect of weak prosecution or non-prosecution of DWIs on interstate commerce on the basis that

the testimony was unreliable and irrelevant under Daubert v. Merrel-Dow Pharms., 

(1993) and, alternatively, that it was unfairly prejudicial under Federal Rule of Evidence 403. The

substance of Castaneda’s argument is that Dr. Voz was not qualified to testify regarding the impact

of drunk driving on commerce and had not conducted any studies to show whether his nationwide

findings regarding DWI prosecutions hold true in Texas. We review challenges of a district court’s

rulings on the admissibility of evidence for an abuse of discretion. United States v. Norris, 

(5th Cir. 2000).

       The government produced substantial evidence of Dr. Voz’s expertise on the subject of

DWIs. Among his many qualifications, he is the head research scientist at the Pacific Institute, a

nonprofit organization of scientists working on government funded research in areas such as public

health, alcoholism, alcohol problems, and traffic safety. He has been employed with the Pacific

Institute as a researcher fo r twenty years. Since 1982, his area of research has been drinking and

driving. During his tenure with the Pacific Institute, Dr. Voz participated in studies related to the

impact of failure to prosecute DWIs on law enforcement, on drivers, and on the public in general.


                                                 11
Some of these studies have been published in journals; others are published by the government. Prior

to entering the private sector, Dr. Voz worked for the Departm ent of Transportation, National

Highway Safety Administration, for thirteen years evaluating laws and federal programs relating to

drinking and driving.

       Based on these qualifications, the district court did not abuse its discretion in concluding that

Dr. Voz was qualified to testify regarding the effect of low prosecutions of DWI cases on highway

safety and commerce.

       Castaneda also asserts that Dr. Voz’s testimony was not reliable or relevant because it was

based on tests conducted on a nationwide basis. Dr. Voz’s research showed that when people

perceive that, if arrested, they will be prosecuted and convicted for DWI, it is a general deterrent,

lowering the number of people who will engage in drinking and driving. When no action is taken by

law enforcement to prosecute offenders, the cycle of drinking and driving continues. Dr. Voz

testified that lowered rates of prosecution of DWI cases results in more alcohol-related crashes, less

highway safety, less travel, and increased traffic congestion. This testimony is relevant to the

government’s theory that the extortion in this case affected interstate commerce. The defendant’s

counsel vigorously cross examined Dr. Voz regarding his studies and their application to DWIs in

Webb County, and the district court did not abuse its discretion in accepting Dr. Voz’s explanation

of the reliability and relevance of his tests to this case. Thus, Dr. Voz’s testimony was properly

admitted as reliable and relevant under Daubert v. Merrel-Dow Pharms.

       We also conclude that the district court did not abuse its discretion in concluding that Dr.

Voz’s testimony was neither unfairly prejudicial nor confusing. Thus, Castaneda’s Rule 403 challenge

likewise has no merit.


                                                  12
        Based on the forgoing, the district court did not abuse its discretion in admitting the testimony

of Dr. Voz.

                                                    VII.

        Castaneda also contends that the district court erred in denying his motion for severance

because the complexity of the case was likely to cause jury confusion. This challenge is reviewed for

an abuse of discretion. United States v. Lee, 

(5th Cir. 1984). In order to meet this

burden, “[a] defendant must show ‘specific and compelling prejudice against which the district court

could not provide adequate protection, and that this prejudice resulted in an unfair trial.’” United

States v. Sharpe, 

, 862 (5th Cir. 1999) (citing United States v. Mitchell, 

,

276 (5th Cir. 1994)).

        Castaneda asserts that the failure to sever his case resulted in jury confusion regarding what

evidence was applicable to each count and to each defendant. However, the district court gave

careful instructions throughout the trial, informing the jury that particular items of evidence did not

necessarily implicate all defendants. In its final instruction, the court explicitly instructed the jury that

they had to consider the evidence as it applied to each defendant. We are satisfied that the

instructions given by the district court in this case were sufficient to cure any possible prejudice to

Castaneda.

        Based on the foregoing, the district court did not abuse its discretion in denying Castaneda’s

Motion for Severance.

                                                   VIII.

        Finally, both Rubio and Castaneda contend that the evidence was insufficient to prove that

a public official was ever paid for the favorable disposition of a criminal case. In reviewing


                                                     13
sufficiency claims, we “must determine ‘whether viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Williams, 

, 576 (5th Cir. 2001)(citations omitted).

The “jury is ‘free to chose among all reasonable construct ions of the evidence,’ and ‘it is not

necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt.’” 

is limited to whether the

jury’s verdict was reasonable, not whether we believe it to be correct.” 

in Section II above, an element of extortion “under color of official right” is that a

public official “took money or something of value not due him or his office for the performance or

non-performance of an official function.” United States v. Millet, 

, 274 (5th Cir. 1997).

As in proof of any fact, the payment to a public official may be established by either direct or

circumstantial evidence. United States v. Stephens, 

, 428.

                                                   A.

        The government charged Rubio with using his influence both as a public official and as the

father of the Webb County DA to extort money to fix criminal cases. For each count in the

indictment, the government produced evidence showing that an arrestee paid money to Rubio. Thus,

in the counts where Rubio extorted money as a public official,8 the Hobbs Act’s requirement that a

public official is paid is satisfied. In other counts, the government produced evidence that Rubio

either flashed a badge or otherwise held himself out as a public official.9 In most of the counts, Rubio



        8
            Counts 3, 7, 8, 9, 10, 18 charge Rubio with receiving a payment as a public official.
        9
          The government supported Counts 3, 9 and 18 with evidence that Rubio flashed a badge
or referred to himself as “the law.”

                                                  14
also paid a public official such as an ADA or investigator.10 Our review of this record satisfies us that

the government presented sufficient evidence to establish this element in all counts.

                                                   B.

        Castaneda was charged only as a bail bondsman. As such, he acted exclusively in a private

capacity. For each Count on which he was convicted, the government was required to prove that he

acted in concert with a public official who received payment of a portion of the money Castaneda

extorted from an arrestee. Our review of the record satisfied us that the government produced

sufficient evidence to permit a jury to find that an official received some of the money Castaneda

extorted from his clients for each count of his conviction.

        The most direct evidence the government produced was from the testimony of a government

cooperating witness, Jesse Salas. Salas recounted numerous statements Castaneda made, describing

payments he made to public officials to fix cases for his bail customers.11 The government also

produced documentary evidence tying Castaneda to particular ADAs and investigators who disposed

of many of the cases Castaneda was paid to fix.12 For each case Castaneda aided in fixing, the

government produced evidence that he received a payment in addition to his bond fee and that the



        10
         The government supported Counts 1, 10, and 18 with evidence showing that Rubio told
people that he had to share a portion of the money extorted from the arrestees with different
ADAs or investigators.
        11
           The government supported Counts 1and 11 with evidence showing that Castaneda told
Salas that he had to share a portion of the money extorted from the arrestees involved with
different DA’s or investigators.
        12
           The government produced Rodriguez’s and Mendoza’s day-planners containing
notations regarding the arrests relating to Counts 1, 12 and 17. With regard to Counts 1, 2, 17
and 19, the government produced disposition memos and lists prepare by Castaneda’s staff
directing public officials as to how the cases were to be disposed.

                                                   15
arrestee’s case was disposed of in an unusually lenient manner considering the charges, consistently

resulting in no jail time for the arrestee. Based on this evidence, we are satisfied that the government

presented sufficient evidence to establish this element in all counts.

                                                  IX.

        For the reasons stated above, Rubio’s and Castaneda’s convictions on all counts are

AFFIRMED.




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