UNITED STATES of America, Plaintiff-Appellee, v. Phillip TROUTMAN, Defendant-Appellant.

No. 85-2028.

United States Court of Appeals, Tenth Circuit.

March 13, 1987.

William L. Lutz, U.S. Atty. (Mark D. Jarmie, Asst., with him on the brief), Albuquerque, N.M., for plaintiff/appellee. Leon Taylor (Philip C. Gaddy, with him on the briefs), Albuquerque, N.M., for defendant/appellant.

Before BARRETT and SEYMOUR, Circuit Judges, and SAM, District Judge.^{Footnote *}

SAM, District Judge. Phillip E. Troutman appeals his conviction, following a jury trial in the United States District Court for the District of New Mexico, on conspiracy to commit extortion in violation of the Hobbs Act, 18 U.S.C. § 1951.¹ Troutman seeks reversal and remand on the ground the district court erred by refusing to grant his motion for a new trial, or in the alternative, for a judgment of acquittal. We affirm the conviction.

I

Factual Background At the time of his arrest in December 1984, Troutman, the New Mexico State Investment Officer, managed and invested approximately three billion dollars in state funds. His codefendant, Kenneth Johnson, the New Mexico Deputy State Treasurer, paid out state monies and executed state investment transactions. They were advisors to, but not members of, the New Mexico Board of Finance.

In June, 1984, the Board of Finance received a resignation notice from the state fiscal agent, the Bank of Santa Fe. The fiscal agent is essentially the State's bank as it receives state deposits, honors state warrants, safeguards state instruments and acts as a clearing agent for the trading of state securities. It contracts the services of a separate financial institution, called the correspondent bank, that acts as the repository of state securities and oversees the delivery and receipt of securities being traded. Under New Mexico statute, a bank competing for the fiscal agent contract first selects its correspondent then submits a joint proposal to the Board of Finance.

Intending to bid for the fiscal agent contract, the First National Bank in Albuquerque (FNB) designated Irving Trust Company (ITC) as its correspondent in August, 1984. Bart Fleming, an ITC vice-president based in New York City, visited New Mexico on September 6-7, 1984 to discuss the details of the proposal. ITC later presented its portion of the proposal to FNB, and on September 12, 1984, FNB submitted the completed bid to the Board of Finance.

In late July or early August, 1984, the state Democratic fund-raiser, Tim Kraft, obtained New Mexico Governor Anaya's endorsement of a social function designed to secure contributions to the Democratic Leadership Fund which was distributed to Democratic legislative candidates throughout the state. Troutman and Johnson attended the meeting at which Kraft presented the fund-raising idea to the Governor and discussed the possibility of approaching for contributions the financial institutions represented at the Western States Treasurer's Conference hosted by the state a few weeks earlier.^{Footnote 2} Kraft believed

Troutman and Johnson could solicit donations through their daily business interactions because they were acquainted with the bankers in the target institutions. Troutman later gave Kraft a list of people and companies doing business with the State. On September 6, 1984, Bob Byers, manager of an ITC subsidiary, telephoned Johnson to discuss a new portfolio management system Byers had developed and desired to present to the governing body of the Western State Treasurers Association. Byers later sent Johnson an outline of the program and telephoned him on September 11 to discuss it. During that conversation, Johnson asked Byers whether his office had a political action committee or contributed to political fund-raisers. Byers replied his institution made no such contributions and declined Johnson's subsequent request that Byers contribute personally. Byers also stated he did not know whether the parent company, ITC, had a political action committee. Johnson responded that he was aware ITC was competing for some state business and that the contract for the correspondent bank was up for bid because the State's current correspondent, Citibank of New York, failed to purchase a sufficient number of tickets to the political fund-raiser hosted by Governor Anaya. Johnson then mentioned he would send some tickets should Byers decide to purchase them. A few days later, Byers received four $500 tickets to a Democratic political fund-raiser held in New Mexico, to which the following handwritten note was attached: Bob, Nice talking with you. I really don't mean to spring this on you (the tickets) until you mentioned Irving. I've heard good things about their custodial services and would like to see them considered by our Governor.

Take care, Ken R.I, 110-111. Byers did not commit ITC to a contribution, but he relayed to Johnson a message from Tom Archibald, a senior manager at ITC, that ITC saw no problem with purchasing the tickets.^{Footnote 3} Johnson then included ITC on the list of contributors he gave to Governor Anaya and Harvey Fruman, the state cash manager. Before the first Board of Finance meeting on September 27, 1984, Archibald informed Kraft he would not purchase the tickets. Archibald testified ITC refused the tickets because it considered that or any other contribution merely a means of buying business, a practice in which ITC did not engage. Johnson was extremely upset by ITC's decision not to contribute.

Archibald later discussed the tickets with Louis Whitlock, senior vice-president of Becker Industries Corp., a former transfer agent for ITC. Whitlock, then running for the state senate and otherwise participating actively in state Democratic politics, urged Archibald to make the donation, saying, "That's how business is done in New Mexico." Archibald responded ITC had a policy against making such contributions; however, he offered to put the tickets on his American Express card and read Whitlock the card number. Archibald claims he gave the card number because he tired under Whitlock's pressure and did not believe the card could be used for political contributions. Whitlock gave the card number to Kraft, but Johnson later refused to accept that form of contribution.

At the September 27, 1984 meeting of the Board of Finance, Troutman and Johnson urged the Board to delay approval of the correspondent contract until Johnson could examine ITC's computer software. The Board awarded the fiscal agent contract to FNB but rejected FNB's designation of ITC as its correspondent. Its rejection was unprecedented as the Board had always approved without comment the fiscal agent's choice for its correspondent.

On October 9, 1984, two weeks after the B