United States v. Arthur Picklo , 190 F. App'x 887 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14989 JULY 27, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00304-CR-J-25-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR PICKLO,
a.k.a. Tony Tozzi,
a.k.a. Art Picklo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 27, 2006)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
Arthur Picklo appeals his convictions by a jury for deprivation of civil rights
by one acting under the color of law, in violation of 18 U.S.C. § 242, interference
with commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and
obstruction of justice by attempted murder, in violation of 18 U.S.C.
§ 1512(a)(1)(C). Picklo asserts the evidence was insufficient to prove: (1) he was
acting under “color of law” when he deprived the victim, Guadalupe Frausto, of his
civil rights; (2) his robbery offense affected interstate commerce; and (3) he
attempted to kill Frausto to prevent Frausto from reporting him to federal officials.
We conclude the evidence at trial supported the jury’s convictions, and affirm.
I. STANDARD OF REVIEW
We review the sufficiency of the evidence de novo, viewing the evidence
and all reasonable inferences in favor of the government and the jury’s verdict.
United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). The convictions
must be affirmed unless, under no reasonable construction of the evidence, could
the jury have found the defendant guilty beyond a reasonable doubt. Id.Credibility determinations are the sole province of the jury. United States v.
Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997).
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II. DISCUSSION
A. Color of law
Picklo, a former investigator with the Florida Department of Insurance,
asserts there was not sufficient evidence for the jury to find he acted under color of
law in violation of 18 U.S.C. § 242 when he robbed and shot the victim because
robbery was outside the scope of his duties as an investigator, he never identified
himself as a law enforcement officer, and he was motivated purely by financial
gain. To prove a defendant violated 18 U.S.C. § 242 by acting “under color of
law” to deprive another of “any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States,” the government must
establish beyond a reasonable doubt that (1) the defendant’s conduct deprived the
victim of rights secured or protected by the Constitution or federal law; (2) the
defendant acted willfully; and (3) the defendant acted under color of law. United
States v. Lanier, 117 S. Ct. 1219, 1224 (1997).
The Supreme Court has held the term “color of law” is to be given the same
meaning in the context of criminal prosecutions under 18 U.S.C. § 242 and civil
suits under 42 U.S.C. § 1983. Monroe v. Pape, 81 S. Ct. 473, 482-84 (1961),
overruled on other grounds, Monell v. Dep’t of Soc. Servs. for New York, 98 S. Ct.
2018, 2022 (1978). Determining whether a defendant acted under color of law
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involves an assessment of the totality of the circumstances. Griffin v. City of Opa-
Locka, 261 F.3d 1295, 1303-04 (11th Cir. 2001). Color of law means “pretense of
law,” and it does not necessarily mean under authority of law. United States v.
Jones, 207 F.2d 785, 786-87 (5th Cir. 1953). A state official may act under color
of law even when engaging in an illegal activity. See id. at 786 (holding
“paradoxical as it may seem,” a state prison official was whipping prisoners under
color of law although doing it in violation of law).
“Misuse of power, possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law, is action taken
under color of state law.” Williams v. United States, 71 S. Ct. 576, 578 (1951)
(holding a private detective who took an oath as a special police officer was acting
under color of law when he “flash[ed] his badge” while assaulting his victims).
Further, it is not significant to the color of law analysis that the defendant’s misuse
of power “was motivated solely for personal reasons of pecuniary gain.” Brown v.
Miller, 631 F.2d 408, 411 (5th Cir. 1980) (color of law analysis under 42 U.S.C.
§ 1983). "[T]he lack of outward indicia suggestive of state authority–such as being
on duty, wearing a uniform, or driving a patrol car–are not alone determinative of
whether a police officer is acting under color of state law." Revene v. Charles
County Comm’rs, 882 F.2d 870, 872 (4th Cir. 1989).
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Here, the evidence supported Picklo’s conviction for deprivation of civil
rights under 18 U.S.C. § 242. Frausto testified Picklo held up a “police badge” and
said he was “with the North Florida Investigators,” or “something like that.” In
addition, Frausto testified Picklo said, “By the way, Johnny is working with us,”
indicating there was an undercover operation. Moreover, Frausto believed Picklo
was a law enforcement officer of some type, and he feared he would be arrested
due to the check-cashing scheme. Frausto believed he had to follow Picklo’s
instructions because Picklo was a law enforcement officer. Frausto followed
Picklo off the interstate into a nearby neighborhood, and Picklo got into the
passenger’s seat of Frausto’s vehicle. Picklo used his official status to gain entry
into Frausto’s vehicle. Therefore, the evidence establishes Picklo acted under
color of law because he identified himself as a state investigator, flashed a badge,
and used his official status to get Frausto to follow his instructions.
Picklo’s reliance on Almand v. DeKalb County, 103 F.3d 1510 (11th Cir.
1997) is misplaced. In Almand, a police officer investigating the disappearance
and rape of Almand’s daughter told her he would reveal important information
about her daughter’s case if she would agree to have sex with him. Id. at 1512.
One evening, the police officer knocked on Almand’s door, and told her he needed
to talk with her about her daughter. After Almand let the police officer in, he
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began to make sexual advances, she declined, and he eventually agreed to leave.
The police officer went out the door, and Almand closed it behind him. The police
officer then forced the closed door open with such force that the wood broke off
the door. He then reentered the apartment and raped Almand. Almand filed a
complaint against DeKalb County pursuant to 42 U.S.C. § 1983. Id. At issue was
whether the police officer acted under color of law when he forcibly entered
Almand’s apartment the second time. Id. at 1514-15. This Court noted that on the
day of the rape, the police officer “initially gained entry into Almand’s apartment
on the pretense of discussing police business with her,” and that the initial entry
into Almand’s apartment was probably conducted under color of state law because
he gained access to the apartment due to his status as a police officer Id. at 1514-
15. However, “[w]hen [he] reentered the apartment by forcibly breaking in, he
was no different from any other ruffian.” Id. at 1515. His “act of breaking into the
apartment and, by force, raping Almand was a private act not accomplished
because of power possessed by virtue of state law and made possible only because
the wrongdoer was clothed with the authority of state law.” Id. (quotations and
citations omitted).
Here, Picklo gained access to Frausto’s vehicle using his status as a law
enforcement officer, similar to the police officer’s first entry into the apartment in
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Almand. Picklo did not break into Frausto’s vehicle. Frausto followed Picklo’s
instructions because Picklo told him that he was an investigator and flashed a
badge. If Picklo had not indicated he was a law enforcement officer or investigator
of some type, Frausto would have had no reason to follow him. Accordingly, we
conclude there was sufficient evidence for a jury to find Picklo was acting under
color of law and affirm Picklo’s conviction under 18 U.S.C. § 242.
B. Robbery in violation of the Hobbs Act
Picklo also asserts the evidence was not sufficient to convict him of
interference with commerce by robbery in violation of the Hobbs Act, 18 U.S.C.
§ 1951, because there is no evidence the robbery had an actual effect on interstate
commerce. To prove a defendant violated the Hobbs Act, the government must
establish the defendant committed a robbery that “in any way or degree
obstruct[ed], delay[ed], or affect[ed] commerce or the movement of any article or
commodity in commerce.” 18 U.S.C. § 1951(a). We have held “[t]wo elements
are essential for a Hobbs Act prosecution: robbery and an effect on commerce.”
United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000).
“The government needs only to establish a minimal effect on interstate
commerce to support a violation of the Hobbs Act.” Id. We have held robbery or
extortion of an individual violates the Hobbs Act when one of the following
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conditions is met: “(1) the crime depletes the assets of an individual who is directly
engaged in interstate commerce; (2) the crime causes the individual to deplete the
assets of an entity engaged in interstate commerce; or (3) the number of
individuals victimized or sums involved are so large that there will be a cumulative
impact on interstate commerce.” United States v. Diaz, 248 F.3d 1065, 1085 (11th
Cir. 2001) (emphasis in original). In order to show a robbery depleted an
individual’s assets, it is sufficient to show the assets were “lessen[ed] in number,
quantity, content, or force or in vital power or value.” Id. at 1090.
Here, the evidence establishes Picklo’s robbery affected interstate commerce
by depleting the victim’s assets. If the victim had not been robbed, he would have
used the stolen funds to pay his employees and purchase supplies for his business
that were shipped in interstate commerce. The victim regularly purchased nails
and other supplies from a business that was directly engaged in interstate
commerce. First Coast Fasteners purchased goods for resale that were shipped
from Georgia to Florida and manufactured in Japan and the United Arab Emirates.
Further, the owner of First Coast Fasteners testified that framing a house requires
between $500 and $1500 in supplies. Although Frausto’s crew completed the
projects that were pending at the time he was shot, his assets were depleted for
future projects, and he had fewer resources to spend on supplies at First Coast
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Fasteners. See United States v. Jackson, 748 F.2d 1535, 1536-37 (11th Cir. 1984)
(holding, in a case where a defendant was convicted of violating the Hobbs Act by
extorting $5,000 from a man who owned a construction company and customarily
bought materials and supplies that had traveled in interstate commerce, that the
extortion depleted assets to be used by a business connected with interstate
commerce). Picklo’s robbery of Frausto depleted his assets that were used for his
business because Frausto testified he would have used the stolen funds to purchase
supplies that had traveled in interstate commerce. Accordingly, we affirm Picklo’s
conviction under 18 U.S.C. § 1951.
C. Report of robbery to federal official
Finally, Picklo contends the evidence does not support his conviction for
obstruction of justice by attempted murder, 18 U.S.C. § 1512(a)(1)(C), because the
evidence did not establish Picklo intended to prevent the victim from reporting the
robbery to a federal official. In order to prove a defendant obstructed justice by
attempted murder, the government must establish beyond a reasonable doubt
(1) the defendant attempted to kill someone; (2) with the intent; (3) to prevent his
victim from reporting a federal crime to a federal official. 18 U.S.C.
§ 1512(a)(1)(C). With respect to all § 1512 prosecutions, no state of mind need be
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proved with respect to the fact the law enforcement official in question is a federal
official. 18 U.S.C. § 1512(g)(2).
In United States v. Veal, 153 F.3d 1233, 1249-50 (11th Cir. 1998), we
considered the federal nexus requirement for violations of 18 U.S.C. § 1512(b)(3),
which prohibits, inter alia, (1) engaging in misleading conduct, (2) with the intent,
(3) to prevent the communication of information regarding the commission of a
federal offense to a federal law enforcement officer. We considered whether the
defendants needed to know at the time of their conduct that their misleading
information would be communicated to federal law enforcement agents or that the
crime was a federal offense. Id. at 1248-49. We held the federal nexus element is
the same under 18 U.S.C. § 1512(a)(1)(C), and the government need not show the
defendant knew the federal nature of the underlying crime about which he provided
false information or that he intended that a federal law enforcement officer receive
the false information. Id. at 1249-50, 1252. We noted a conviction under
§ 1512(b)(3) “does not depend on the existence or imminency of a federal case or
investigation but rather on the possible existence of a federal crime and a
defendant’s intention to thwart an inquiry into that crime.” Id. at 1250 (emphasis
in original). It was sufficient there was a “possibility or likelihood” the
information would be relayed to federal officials. Id. at 1251.
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Here, applying the analysis from Veal, the Government was not required to
prove Picklo knew his robbery was a federal crime or that he intended to prevent
the victim from reporting the crime to a federal official in particular. The
possibility Frausto could have reported the crime to a federal official is sufficient,
and that possibility existed in this case because he (1) knew federal agents were
involved in the underlying investigation, and (2) the confidential informant who
introduced Picklo to his victim was working for federal investigators.
Accordingly, we affirm Picklo’s conviction under 18 U.S.C. § 1512(a)(1)(C).
III. CONCLUSION
The jury had sufficient evidence to convict Picklo of deprivation of civil
rights by one acting under the color of law, in violation of 18 U.S.C. § 242,
interference with commerce by robbery in violation of the Hobbs Act, 18 U.S.C.
§ 1951, and obstruction of justice by attempted murder, in violation of 18 U.S.C.
§ 1512(a)(1)(C). We affirm his convictions.
AFFIRMED.
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