Unpublished Disposition, 897 F.2d 533 (9th Cir. 1990)

MEMORANDUM^* 

Gilbert Chilton appeals his conviction following a guilty plea to extortion under color of official right, and his sentences for extortion, attempted tax evasion, conspiracy, and misapplication of savings and loan funds. We have jurisdiction under 28 U.S.C. § 1291 (1982). We affirm.

We reject Chilton's argument that an insufficient factual basis existed on the record for his guilty plea. We review this question de novo. See United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983) (applying same test as district court was required to apply), cert. denied, 467 U.S. 1215 (1984).

Chilton alleges that there are no facts on the record indicating that he induced another to give him an improper benefit. Chilton is correct that an essential element of extortion under color of official right is that the defendant induced, under color of his office, an improper benefit from another person. United States v. Aguon, 851 F.2d 1158, 1166 (9th Cir. 1988) (en banc). But inducement can be by the defendant's conduct as well as by his statements. Id.

Chilton's plea agreement contains the following assertion: " [B]y his conduct [Chilton] caused Charles Raymond to make [a] payoff in exchange for Chilton's exercise of his official powers as Chairman and member of the [State Teacher's Retirement System] Board." At his plea hearing, Chilton stated that the facts set forth in the plea agreement were correct. Chilton adopted the agreement's factual assertions as the factual basis for his guilty plea. Furthermore, at the plea hearing, the court conducted a conscientious and painstaking inquiry to ensure that Chilton understood the proceedings, had read the plea agreement, and had sufficient time to review all matters with his counsel. Chilton assured the court that he understood the consequences of his pleas and the nature of the charges, and needed no further time to converse with counsel.

Thus, a sufficient factual basis for the inducement element exists on the record to support Chilton's guilty plea.

We also reject Chilton's argument that the district court's refusal to allow him to make an in camera presentation of his prior cooperation with the prosecution denied him the meaningful exercise of his right of allocution. We review this question de novo. See United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir. 1980) (implicitly applying the de novo standard).

We believe that even without presenting the details of his prior cooperation, Chilton was able "to present fully all available accurate information bearing on the mitigation of punishment." Id. At the sentencing hearing, Chilton's counsel stated that Chilton had cooperated with the government and testified before a grand jury in the matter. Chilton himself submitted a 26-page handwritten statement and gave a lengthy oral statement. Thus, the district court could consider in imposing sentence that Chilton had cooperated with the government. We conclude that Chilton was not denied his right of allocution. See id.

Chilton's motion to supplement the appellate record with the transcripts of his grand jury testimony is denied. These transcripts were not before the district court. As a result, they are not properly before us. See Fed. R. App. P. 10(a); United States v. Kennedy, 890 F.2d 1056, 1058 n. 4 (9th Cir. 1989).

The judgment of the district court is AFFIRMED.