[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 27, 2006

N o . 05-14989

THOMAS K. KAHN

N o n - A r g u m e n t Calendar

CLERK

D . C. Docket No. 04-00304-CR-J-25-TEM

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTHUR PICKLO,

a.k.a. Tony Tozzi,

a.k.a. Art Picklo,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Middle District of Florida

(July 27, 2006)

B efo re DUBINA, BLACK and HULL, Circuit Judges.

P E R CURIAM:

A rth u r Picklo appeals his convictions by a jury for deprivation of civil rights b y one acting under the color of law, in violation of 18U.S.C. § 242, interference w ith commerce by robbery in violation of the Hobbs Act, 18U.S.C. § 1951, and o b stru ctio n of justice by attempted murder, in violation of 18U.S.C.

§ 1512(a)(1)(C). Picklo asserts the evidence was insufficient to prove: (1) he was actin g under "color of law" when he deprived the victim, Guadalupe Frausto, of his civ il rights; (2) his robbery offense affected interstate commerce; and (3) he attem p ted 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 W e review the sufficiency of the evidence de novo, viewing the evidence an d 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 m u st be affirmed unless, under no reasonable construction of the evidence, could th e jury have found the defendant guilty beyond a reasonable doubt. Id.

Credibility determinations are the sole province of the jury. United States v. C a ld ero n , 127 F.3d 1314, 1325 (11th Cir. 1997). II. DISCUSSION A . Color of law P ic k lo , 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 18U.S.C. § 242 when he robbed and shot the victim because r o b b e ry was outside the scope of his duties as an investigator, he never identified h im s elf as a law enforcement officer, and he was motivated purely by financial g ain . To prove a defendant violated 18U.S.C. § 242 by acting "under color of law " to deprive another of "any rights, privileges, or immunities secured or p ro tected by the Constitution or laws of the United States," the government must estab lish beyond a reasonable doubt that (1) the defendant's conduct deprived the v ictim of rights secured or protected by the Constitution or federal law; (2) the d efen d an t acted willfully; and (3) the defendant acted under color of law. United S ta te s v. Lanier, 117 S. Ct. 1219, 1224 (1997).

The Supreme Court has held the term "color of law" is to be given the same m ean in g in the context of criminal prosecutions under 18U.S.C. § 242 and civil su its under 42U.S.C. § 1983. Monroe v. Pape, 81 S. Ct. 473, 482-84 (1961), o verru led on other grounds, Monell v. Dep't of Soc. Servs. for New York, 98 S. Ct.

2 0 1 8 , 2022 (1978). Determining whether a defendant acted under color of law in v o lv es an assessment of the totality of the circumstances. Griffin v. City of OpaL o c k a , 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. J o n e s, 207 F.2d 785, 786-87 (5th Cir. 1953). A state official may act under color o f law even when engaging in an illegal activity. See id. at 786 (holding "p a r ad o x ic al as it may seem," a state prison official was whipping prisoners under co lo r of law although doing it in violation of law).

"Misuse of power, possessed by virtue of state law and made possible only b e c au s e the wrongdoer is clothed with the authority of state law, is action taken u n d e r color of state law." Williams v. United States, 71 S. Ct. 576, 578 (1951) (h o ld in g a private detective who took an oath as a special police officer was acting u n d er 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 o f power "was motivated solely for personal reasons of pecuniary gain." Brown v. M iller, 631 F.2d 408, 411 (5th Cir. 1980) (color of law analysis under 42U.S.C.

§ 1983). "[T]he lack of outward indicia suggestive of state authority§ 242. Frausto testified Picklo held up a "police badge" and s aid he was "with the North Florida Investigators," or "something like that." In ad d itio n , Frausto testified Picklo said, "By the way, Johnny is working with us," in d icatin g there was an undercover operation. Moreover, Frausto believed Picklo w a s a law enforcement officer of some type, and he feared he would be arrested d u e to the check-cashing scheme. Frausto believed he had to follow Picklo's in s tr u c tio n s because Picklo was a law enforcement officer. Frausto followed P ick lo off the interstate into a nearby neighborhood, and Picklo got into the p a s se n g e r 's seat of Frausto's vehicle. Picklo used his official status to gain entry in to Frausto's vehicle. Therefore, the evidence establishes Picklo acted under c o lo r of law because he identified himself as a state investigator, flashed a badge, an d 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. 1 9 9 7 ) is misplaced. In Almand, a police officer investigating the disappearance an d rape of Almand's daughter told her he would reveal important information ab o u t 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 b eg an 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 o f f ic er then forced the closed door open with such force that the wood broke off th e door. He then reentered the apartment and raped Almand. Almand filed a co m p lain t against DeKalb County pursuant to 42U.S.C. § 1983. Id. At issue was w h e th e r the police officer acted under color of law when he forcibly entered A lm an d 's apartment the second time. Id. at 1514-15. This Court noted that on the d ay of the rape, the police officer "initially gained entry into Almand's apartment o n the pretense of discussing police business with her," and that the initial entry in to Almand's apartment was probably conducted under color of state law because h e gained access to the apartment due to his status as a police officer Id. at 15141 5 . However, "[w]hen [he] reentered the apartment by forcibly breaking in, he w a s no different from any other ruffian." Id. at 1515. His "act of breaking into the a p a rtm e n t and, by force, raping Almand was a private act not accomplished b ecau se of power possessed by virtue of state law and made possible only because th e wrongdoer was clothed with the authority of state law." Id. (quotations and citatio n s omitted).

Here, Picklo gained access to Frausto's vehicle using his status as a law en fo rcem en t officer, similar to the police officer's first entry into the apartment in A lm a n d . Picklo did not break into Frausto's vehicle. Frausto followed Picklo's in stru ctio n s because Picklo told him that he was an investigator and flashed a b ad g e. If Picklo had not indicated he was a law enforcement officer or investigator o f some type, Frausto would have had no reason to follow him. Accordingly, we c o n c lu d e there was sufficient evidence for a jury to find Picklo was acting under co lo r of law and affirm Picklo's conviction under 18U.S.C. § 242.

B. Robbery in violation of the Hobbs Act P ick lo also asserts the evidence was not sufficient to convict him of in terferen ce with commerce by robbery in violation of the Hobbs Act, 18U.S.C.

§ 1951, because there is no evidence the robbery had an actual effect on interstate co m m erce. To prove a defendant violated the Hobbs Act, the government must e sta b lis h the defendant committed a robbery that "in any way or degree o b stru ct[ed ], delay[ed], or affect[ed] commerce or the movement of any article or co m m o d ity in commerce." 18U.S.C. § 1951(a). We have held "[t]wo elements a re 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 c o m m e rc e to support a violation of the Hobbs Act." Id. We have held robbery or ex to rtio n of an individual violates the Hobbs Act when one of the following co n d itio n s is met: "(1) the crime depletes the assets of an individual who is directly en g ag ed 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 in d iv id u als victimized or sums involved are so large that there will be a cumulative im p a c t on interstate commerce." United States v. Diaz, 248 F.3d 1065, 1085 (11th C ir . 2001) (emphasis in original). In order to show a robbery depleted an in d iv id u a l's assets, it is sufficient to show the assets were "lessen[ed] in number, q u a n tity , content, or force or in vital power or value." Id. at 1090.

Here, the evidence establishes Picklo's robbery affected interstate commerce b y depleting the victim's assets. If the victim had not been robbed, he would have u sed the stolen funds to pay his employees and purchase supplies for his business th at were shipped in interstate commerce. The victim regularly purchased nails an d other supplies from a business that was directly engaged in interstate c o m m e rc e. First Coast Fasteners purchased goods for resale that were shipped fro m 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 b etw een $500 and $1500 in supplies. Although Frausto's crew completed the p ro jects that were pending at the time he was shot, his assets were depleted for fu tu re projects, and he had fewer resources to spend on supplies at First Coast F asten ers. See United States v. Jackson, 748 F.2d 1535, 1536-37 (11th Cir. 1984) (h o ld in g , in a case where a defendant was convicted of violating the Hobbs Act by ex to rtin g $5,000 from a man who owned a construction company and customarily b o u g h t materials and supplies that had traveled in interstate commerce, that the ex to rtio n depleted assets to be used by a business connected with interstate co m m erce). Picklo's robbery of Frausto depleted his assets that were used for his b u sin ess because Frausto testified he would have used the stolen funds to purchase su p p lies that had traveled in interstate commerce. Accordingly, we affirm Picklo's co n v ictio n under 18U.S.C. § 1951.

C . Report of robbery to federal official Finally, Picklo contends the evidence does not support his conviction for o b stru ctio n of justice by attempted murder, 18U.S.C. § 1512(a)(1)(C), because the ev id en ce did not establish Picklo intended to prevent the victim from reporting the ro b b ery to a federal official. In order to prove a defendant obstructed justice by attem p ted murder, the government must establish beyond a reasonable doubt (1 ) the defendant attempted to kill someone; (2) with the intent; (3) to prevent his v ictim from reporting a federal crime to a federal official. 18U.S.C.

§ 1512(a)(1)(C). With respect to all § 1512 prosecutions, no state of mind need be p r o v e d with respect to the fact the law enforcement official in question is a federal o fficial. 18U.S.C. § 1512(g)(2).

In United States v. Veal, 153 F.3d 1233, 1249-50 (11th Cir. 1998), we c o n s id e r ed the federal nexus requirement for violations of 18U.S.C. § 1512(b)(3), w h ich prohibits, inter alia, (1) engaging in misleading conduct, (2) with the intent, ( 3 ) to prevent the communication of information regarding the commission of a fed era l offense to a federal law enforcement officer. We considered whether the d efen d an ts needed to know at the time of their conduct that their misleading in fo rm atio n would be communicated to federal law enforcement agents or that the crim e was a federal offense. Id. at 1248-49. We held the federal nexus element is th e same under 18U.S.C. § 1512(a)(1)(C), and the government need not show the d e f en d a n t 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 th e 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 in v e stig a tio n but rather on the possible existence of a federal crime and a d e f en d a n t'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 in fo rm atio n would be relayed to federal officials. Id. at 1251. H ere, applying the analysis from Veal, the Government was not required to p ro v e Picklo knew his robbery was a federal crime or that he intended to prevent th e victim from reporting the crime to a federal official in particular. The p o ssib ility Frausto could have reported the crime to a federal official is sufficient, a n d that possibility existed in this case because he (1) knew federal agents were in v o lv ed in the underlying investigation, and (2) the confidential informant who in tro d u ced Picklo to his victim was working for federal investigators.

Accordingly, we affirm Picklo's conviction under 18U.S.C. § 1512(a)(1)(C).

III. CONCLUSION T h e jury had sufficient evidence to convict Picklo of deprivation of civil rig h ts by one acting under the color of law, in violation of 18U.S.C. § 242, in terferen ce with commerce by robbery in violation of the Hobbs Act, 18U.S.C.

§ 1951, and obstruction of justice by attempted murder, in violation of 18U.S.C.

§ 1512(a)(1)(C). We affirm his convictions.

AFFIRMED.