United States v. Analetto , 807 F.3d 423 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2279
UNITED STATES,
Appellee,
v.
JOHN ANALETTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Kayatta, Stahl, and Barron,
Circuit Judges.
Gary G. Pelletier, with whom Pelletier Clarke & Caley, LLC,
was on brief, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
December 9, 2015
BARRON, Circuit Judge. In this appeal, John Analetto
brings three challenges to his conviction, under 18 U.S.C. § 894,
for knowingly participating in the use of extortionate means to
collect or attempt to collect an extension of credit. We reject
each one of Analetto's challenges and affirm the conviction.
I.
After a jury trial, Analetto, a former Massachusetts
state trooper, was convicted of using extortionate means to
attempt to collect an extension of credit -- arising out of a
gambling debt -- from a man named Christopher Twombly. See 18
U.S.C. § 894 (making it a crime to "knowingly participate[] in any
way, or conspire[] to do so, in the use of any extortionate
means . . . to collect or attempt to collect any extension of
credit"). The prosecution put on evidence to show that Analetto
had made an implicit threat of violence to Twombly in a voicemail
that he left on Twombly's phone on December 30, 2011. See 18
U.S.C. § 891(7) (defining "extortionate means" as "any means which
involves the use, or an express or implicit threat of use, of
violence or other criminal means to cause harm to the person,
reputation, or property of any person").
Analetto first contends that the conviction must be set
aside because the District Court chose the wrong remedy for the
prosecution's gender-based discrimination in the use of peremptory
challenges during jury selection. See J.E.B. v. Alabama ex rel.
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T.B., 511 U.S. 127, 129 (1994) (holding that "gender, like race,
is an unconstitutional proxy for juror competence and
impartiality"); Batson v. Kentucky, 476 U.S. 79, 85-86 (1986)
(setting out the general rule that a defendant has "the right to
be tried by a jury whose members are selected pursuant to
nondiscriminatory criteria"). Analetto next contends that the
conviction must be reversed because the evidence at trial was
insufficient to support a finding that his voicemail message
conveyed an implicit threat of violence and because the government
failed to put on any other evidence that could suffice to prove
that he had done so. And, finally, Analetto challenges the
District Court's refusal to instruct the jury regarding whether
Analetto specifically intended to cause fear in Twombly and whether
Analetto was too intoxicated at the time he left the voicemail
message to have had such a specific intent.
We consider Analetto's challenges in this order.
II.
Analetto's Batson challenge targets only the remedy that
the District Court used to cure the prosecution's gender-based,
discriminatory use of peremptory challenges during jury selection.
The District Court imposed a remedy following an objection that
Analetto lodged after the prosecution attempted to use its eighth
peremptory strike against a male juror ("Juror Number 41"). That
remedy was to seat Juror Number 41 and to prohibit the prosecution
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from further exercising peremptory strikes against male jurors.
Analetto contends that remedy was too limited.
The key premise on which Analetto's challenge rests is
that the District Court found the prosecution had violated Batson
not only in exercising a peremptory strike against Juror Number
41, but also in using peremptory strikes against seven other male
jurors earlier in the selection proceedings. From that premise,
Analetto contends that the District Court was required to cure the
Batson violation that it found either by seating all eight male
jurors that the prosecution had peremptorily struck or by redoing
jury selection with an entirely new venire.1
A review of the record shows, however, that Analetto's
challenge to the District Court's Batson remedy rests on a mistaken
premise. The District Court's finding of discrimination related
only to the prosecution's use of a peremptory challenge against
Juror Number 41 and not to the prosecution's use of peremptory
challenges against the seven other male jurors that the prosecution
had struck earlier.
The record makes that more limited scope of the District
Court's Batson finding quite clear. The District Court announced
1Analetto mistakenly states in his brief that the prosecution
had seven peremptory challenges; that understanding led Analetto
to advocate in his brief for "the seating of the remaining six
afflicted jurors" when he clearly intended to refer to all
challenged male jurors.
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that it was imposing a remedy only in response to the objection by
defense counsel to the prosecution's attempt to peremptorily
strike Juror Number 41, who was a male. In finding that strike
impermissibly gender-based, the District Court stated: "The
objection is sustained. . . . [E]very government strike has been
a male, and I think that -- I'm not persuaded by the
explanation. . . . I won't allow you to strike him."
The "explanation" to which the District Court referred
was the one that the prosecutor gave in her attempt to justify the
challenge of Juror Number 41. The prosecutor offered that
explanation after defense counsel had argued that Juror Number 41
in particular was unworthy of the strike, because "[o]f all jurors,
this guy has to be the one who's worn all the hats, who's got to
be the most fair and impartial of all of them . . . ."2 The
prosecutor responded that the prosecution took "a different view
of the impression that [the juror] gave at sidebar" and that she
was "concerned that [the juror] has had experience . . . in the
court system."
Thus, in rejecting the prosecutor's explanation for
striking the juror, the District Court found only that the
prosecution had failed to explain how its decision to strike Juror
Number 41 in particular was based on anything other than that
2 Juror Number 41 had previously indicated that he had worked
as both a prosecutor and a defense lawyer.
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juror's gender. No broader finding of gender-based discrimination
in the prosecution's use of other strikes was made.
In lodging the Batson challenge to the prosecution's
attempt to strike Juror Number 41, Analetto's counsel did refer to
the prosecution's prior striking of seven male jurors. But, in
context, that reference to the prosecution's prior conduct is
reasonably understood, not as a Batson challenge to each of the
prosecution's seven prior strikes of male jurors, but only as
support for the contention that gender discrimination explained
the prosecution's eighth strike given the prosecution's lack of
any other reasonable explanation for it. See Sanchez v. Roden,
753 F.3d 279, 302 (1st Cir. 2014) ("[D]emonstrating a pattern of
strikes against members of a cognizable group may raise an
inference of discrimination against a particular juror."). Thus,
one cannot infer from the nature of Analetto's counsel's objection
to the striking of Juror Number 41 that the District Court, in
ruling in defense counsel's favor, must have been making the more
sweeping finding of gender-based discrimination that Analetto
contends it made.3
3 Nor had Analetto's counsel objected earlier to any of the
prosecution's previous seven strikes of male jurors. His only
relevant prior comment came after the prosecution exercised its
seventh peremptory challenge against a male juror. Analetto's
counsel then asked how many challenges the prosecution had left
because he "want[ed] to know how many more men [he] should [] knock
off." But that comment alone cannot transform the later objection
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Consistent with the conclusion that the District Court
made a narrowly tailored finding of discrimination in response to
a narrowly tailored objection, Analetto never raised any further
objection or asked for clarification after the District Court
sustained the objection and announced its limited remedy. Rather,
when faced with a remedy that did not purport to address the
striking of the seven other male jurors, defense counsel
affirmatively stated he was content with the jury.4
The District Court did, in addition to requiring the
seating of Juror Number 41, impose a partially prospective remedy.
That aspect of the remedy banned the prosecution from striking any
male jurors in the future while seating the eighth juror. But the
forward-looking part of the District Court's remedy does not itself
suffice to show that the District Court must have implicitly found
that the seven previously challenged male jurors also had been
struck in violation of Batson. In fact, the District Court at no
point asked the government for an explanation of why it had struck
any of those seven jurors. We therefore decline to presume that
the District Court made a sweeping, but utterly unsupported,
to the exercise of a peremptory challenge against Juror Number 41
into a contention that the prosecution violated Batson in
exercising the seven other peremptory challenges against male
jurors.
4 The government contends we must review the Batson ruling
for plain error, but Analetto's Batson challenge would fail under
even the de novo standard he asks us to apply.
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finding of discrimination as to the other seven challenged male
jurors when the record supports a far more reasonable conclusion:
the District Court found discrimination only in connection with
the striking of Juror Number 41.
Because the District Court found discrimination only
with respect to the government's attempt to strike Juror Number
41, the District Court's chosen remedy -- "disallow[ing] the
discriminatory challenge[] and resum[ing] selection with the
improperly challenged jurors reinstated on the venire," while also
barring the government from challenging another male -- cannot be
said to have been inadequate under Batson. See Batson, 476 U.S.
at 99 n.24.5 We thus reject Analetto's Batson-based challenge to
his conviction.
III.
Analetto also challenges the District Court's denial of
his Rule 29 motion for acquittal based on insufficiency of
evidence. He contends the District Court erred in denying the
motion because the evidence at trial did not support the
government's theory that he made an implicit threat of violence
within the meaning of 18 U.S.C. § 891(7).
5We express no view as to the propriety of the District
Court's prohibiting the prosecution from challenging male jurors
going forward.
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Under the statute, the government must show that there
was evidence from which a rational jury could find that Analetto
made an "implicit threat . . . of violence or other criminal means
to cause harm to the person, reputation, or property" of Twombly.
See 18 U.S.C. § 891(7). "It is the nature of the actions of the
person seeking to collect the indebtedness, not the mental state
produced in the debtor, that is the focus of the inquiry for the
jury." United States v. Oreto, 37 F.3d 739, 752 (1st Cir. 1994)
(quoting United States v. Polizzi, 801 F.2d 1543, 1548 (9th Cir.
1986)). But actual fear on the part of the debtor in response to
the alleged implicit threat "may be pertinent evidence." Id.Our review of the District Court's denial of the motion
is de novo. United States v. Troy, 583 F.3d 20, 24 (1st Cir.
2009). We examine the evidence in the light most favorable to the
verdict and ask whether a rational factfinder could find guilt
beyond a reasonable doubt. Id. "To sustain a conviction, the
court need not conclude that only a guilty verdict appropriately
could be reached; it is enough that the finding of guilt draws its
essence from a plausible reading of the record." United States v.
Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993).
In this case, the implicit threat that underlies the
conviction is contained in the voicemail message that Analetto
left on Twombly's phone in connection with an attempt to collect
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an illegal gambling debt. The record transcript of the voicemail
reads as follows:
Hi, Chris. Happy New Year. We're calling to see if we
can recoup some of our investment. You owe 38, we'll
round it to four, with interest. We'd appreciate it if
you contact the right people and start doing the right
thing or, you know, 2012 isn't going to be too good for
you. So Happy New Year to you and your Mom and your Dad
and your family, and we appreciate your consideration.
Make the call. We hope to hear from you by the first of
2012. Capice? Bye.
Analetto correctly points out that nowhere in that
voicemail did Analetto expressly "threaten to kill, maim, stab,
punch, or inflict any physical harm upon Mr. Twombly." But the
evidence (when considered in the light most favorable to the
verdict) established that prior to leaving that message Analetto
urged another man to threaten Twombly and that Analetto volunteered
to make a threatening call himself. And the evidence at trial
further showed (when, again, considered in the light most favorable
to the verdict) the voicemail that Analetto did leave induced fear
in its recipient, Twombly. Thus, the evidence was sufficient,
especially given that the call was made in an attempt to collect
an illegal gambling debt, to support the finding that Analetto
knowingly conveyed an implicit threat of violence to Twombly, as
"the finding of guilt draws its essence from a plausible reading
of the record." See id.Specifically, the evidence at trial showed the
following.
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In leaving the message, Analetto was acting on behalf of
Robert Russo, a friend who ran an illegal gambling business.
Analetto had lent money to Russo to help keep his gambling business
afloat, and Analetto had grown increasingly frustrated with
Russo's inability to collect from debtors such as Twombly (and
thus Russo's resulting inability to pay back Analetto).
Significantly, in a December 30, 2011 conversation
between Analetto and Russo, Analetto urged Russo to confront
Twombly in person about the debt. Analetto encouraged Russo to
dress completely in black and "[g]o to [Twombly's] house and slash
all the tires on his car." And Analetto went on in that
conversation to suggest that Russo threaten to "stick a fucking
broomstick up [Twombly's] mother's cunt." Indeed, when Russo
expressed doubt about threatening Twombly's mother, Analetto
continued: "I'll make the call, and I'll say, 'Listen, the tires
were first; now we're going to fuck with your mother's house. When
a bullet comes through your mother's window' . . . ."
Following this conversation, Analetto then asked for
Twombly's number and made the call. Immediately after making the
call, moreover, Analetto was informed that Twombly's father was in
fact deceased. Analetto responded to that information as follows:
"I don't give a fuck his father's dead, his fucking mother's dead.
I don't give a fuck. That has to be done. At minimum, he's
thinking now."
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Thus, the fact that the precise words Analetto used in
his voicemail message did not overtly refer to any particular
violent means that would be used if Twombly did not pay the debt
is not dispositive of whether the trial evidence supported a
finding that Analetto knowingly conveyed an implicit threat of
violence. The words Analetto used in the voicemail message in his
attempt to collect the illegal debt were certainly ominous ones.
And, when the voicemail message is considered in conjunction with
the evidence about Analetto's stated intent in making the call, a
jury could certainly infer that Analetto intended to convey an
implicit threat of violence to Twombly.
Moreover, Twombly testified that the voicemail message
that Analetto left "obviously scared the heck out of" him. In
particular, Twombly testified that the fact that the caller (whom
he did not recognize) had explicitly mentioned his family was
especially scary. Twombly further testified that he viewed as
threatening Analetto's comment that 2012 would not be "too good
for" him if he did not pay. And while "[t]he debtor's subjective
fear" is not itself an element of the offense under 18 U.S.C. §
894, the recipient's "actual fear may be pertinent evidence" that
bears on whether the defendant was knowingly conveying a violent
threat. Oreto, 37 F.3d at 752. Thus, the evidence of how Twombly
understood the voicemail message reinforces the reasonableness of
the jury's finding that Analetto knowingly conveyed an implicit
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threat of violence to Twombly through the voicemail message.
Accordingly, we affirm the District Court's rejection of
Analetto's Rule 29 motion.
IV.
Analetto's final challenge concerns the instructions
that the District Court gave the jury. Analetto contends that
they were fatally incomplete. Specifically, he argues that the
District Court committed reversible error by not including two
instructions that Analetto requested. The first was that Analetto
could not be found guilty unless the jury found that he had the
specific intent to cause fear in Twombly when leaving the
voicemail.6 The second was that "intoxication may prevent a person
from having knowledge of their actions or the intent necessary to
cause fear" -- in other words, that intoxication can negate
"specific intent."7
6 The full text of that requested instruction follows:
A defendant knowingly participates in use of
extortionate means when he intends by his conduct to
install fear of harm in the debtor. Acts or statements
are a threat if they would reasonably induce fear of
harm in an ordinary person. A simple demand for money
is not a threat. Fear, however, must be the intended
result of the defendant's actions and he must make the
threat knowing and intending it to cause fear in the
mind of the recipient.
7 Evidence had been introduced at trial that tended to prove
that Analetto was drinking Scotch whiskey throughout his meeting
with Russo on December 30, 2011.
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When considering preserved challenges to jury
instructions that involve "the interpretation of the elements of
a statutory offense," our review is de novo. United States v.
Pitrone, 115 F.3d 1, 4 (1st Cir. 1997). But when such a challenge
is unpreserved, we review only for plain error. United States v.
Pennue, 770 F.3d 985, 989 (1st Cir. 2014). And the government
contends here that because Analetto registered no post-charge
objection, we should apply plain-error review. See United States
v. Meadows, 571 F.3d 131, 146 (1st Cir. 2009) (internal citations
and quotation marks omitted); United States v. Combs, 555 F.3d 60,
62-63 (1st Cir. 2009) (applying this standard in a case where
defendant had submitted a requested instruction but then did not
object to its exclusion after being invited to do so by the trial
judge).
Analetto contends otherwise without addressing this
contrary precedent. But his challenge fails under even his
preferred standard, because any error in denying his requested
instructions was harmless. See Neder v. United States, 527 U.S.
1, 9–10 (1999) (applying harmless-error review to a defendant's
claim that a jury instruction omitted an element of the charged
offense).
To support his challenge to the refusal to give the
instruction regarding "specific intent to cause fear," Analetto
urges us to conclude from statements in two Second Circuit
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decisions that a defendant cannot be convicted under § 894 unless
he specifically intended to put his victim in fear. In particular,
he relies on United States v. Sears, 544 F.2d 585, 587–88 (2d Cir.
1976), which stated in describing § 894 that "[f]ear must be the
intended result of the defendant's act," (citations, internal
quotation marks, and alterations omitted), and United States v.
Lombardozzi, 491 F.3d 61, 70–71 (2d Cir. 2007), which stated that,
under § 894, "[t]he government had to establish that, in collecting
the loans, [the defendant] intended, as the result of his actions,
to cause [the victim] to fear he would suffer harm to his person,
reputation, or property."
We need not decide whether Analetto is right to read
this out-of-circuit precedent as he does, let alone whether we
would adopt that view as the law of our circuit. And that is
because, on the facts of this case and in the context of the
instructions that the District Court did give, it is simply not
plausible that Analetto "knowingly" made an implicit threat of
violence to Twombly without also specifically intending to cause
fear by doing so.
A threat of violence typically induces fear. Analetto
called Twombly without any basis on which to believe Twombly's
reaction to a threat of violence would be anything other than
typical. In fact, the evidence at trial showed that Analetto and
Twombly had no prior relationship of any kind before Analetto
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called him on December 30, 2011. And so there was no evidence to
suggest that Analetto's threat -- if knowingly made, as the jury
found in convicting -- was not aimed at causing the typical fear-
inducing result.
Thus, there is no basis for concluding that Analetto was
prejudiced by the District Court's refusal to give the requested
instruction, even assuming that § 894 requires proof of a
defendant's specific intent to cause fear. Moreover, Analetto has
not demonstrated -- or even attempted to demonstrate -- how or why
the omission of the requested instruction concerning a specific
intent to cause fear was in fact prejudicial in this case. In
consequence, we reject Analetto's challenge.
Analetto further argues that the District Court should
have instructed the jury that voluntary intoxication can negate a
specific intent element of a crime. See United States v. Burns,
15 F.3d 211, 218 (1st Cir. 1994); United States v. Sewell, 252
F.3d 647, 650 (2d Cir. 2001). The District Court declined to give
an instruction on intoxication on the basis of its conclusion that
§ 894 was "not a specific intent crime." But even assuming that
the "specific intent to cause fear" is an element of the crime
proscribed by § 894, Analetto also cannot show prejudice from the
omission of an instruction about intoxication.
The evidence of Analetto's intoxication, which the
District Court allowed, included testimony that Analetto was
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drinking Scotch whiskey during the meeting with Russo on December
30 that led to Analetto's call to Twombly. The recording of the
meeting provides no support for concluding that Analetto, as a
result of intoxication or otherwise, displayed confusion as to who
Twombly was or whether he had a previous relationship with him.
At all times, Analetto displayed a clear focus on pursuing
Twombly's debt to Russo. Indeed, Analetto even noted that he was
calling Russo on an "untraceable Walmart phone," indicating that
Analetto explicitly recognized that Twombly would not know who had
left the voicemail message. As a result, the trial evidence
provides no basis from which we could conclude that the jury would
have found that Analetto's intoxication led him to believe that a
threat of violence would not have the predictable result of causing
fear in Twombly.8 We thus conclude that even on the doubtful
assumption that the District Court erred in omitting an instruction
on intoxication, that error was harmless.
V.
For the reasons set forth above, we affirm Analetto's
conviction.
8We note that Analetto does not argue that an intoxication
instruction would have been relevant to the jury's determination
whether Analetto knowingly made a threat of violence to Twombly.
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