United States v. David Peter Marsh , 26 F.3d 1496 ( 1994 )

Opinion by Judge CANBY; Concurrence and Dissent by Judge NOONAN.

CANBY, Circuit Judge:

Following a jury trial, David Peter Marsh was convicted on one count of extortion or attempted extortion and sentenced to five years in prison. Marsh now appeals his conviction, contending that the evidence was insufficient to support the conviction for extortion by threat of economic harm and that the district court erred in instructing the jury and in preventing him from introducing expert testimony regarding the complaining witness’s “dependent personality disorder.” Marsh also appeals his sentence, arguing that the district court erred in departing upward from the guidelines.

We affirm Marsh’s conviction. We vacate the sentence, however, and remand for re-sentencing.

BACKGROUND

Marsh was indicted for attempting to extort and for extorting money from a San Francisco businessman, whose privacy we will protect by referring to him only as “Doe.” The extortionate threats were alleged to have been made in the course of a series of telephone calls made by Marsh to Doe, and recorded on Doe’s answering machine. The indictment contained three counts: Count I, alleging threats of economic harm in telephone calls made on September 4, 1991; Count II, alleging threats to kill in calls of October 7, 1991; and Count III, alleging threats to kill in calls of October 9, 1991. The jury convicted Marsh on Count I, but acquitted him on Counts II and III. This appeal consequently focuses on the calls of September 4, 1991. Because the meaning of those calls is disputed, and because the jury was entitled to interpret the meaning of those calls in light of all the evidence, we set forth excerpts of several of the other calls as well. We also relate the history of the relationship between Marsh and Doe.

Marsh and Doe first met more than 25 years ago when Doe responded to Marsh’s newspaper advertisement for male models. On more than one occasion thereafter, Doe engaged in a sexual relationship in which he paid Marsh for prostitution. Eventually, a friendship developed. Doe, who lived in San Francisco, and Marsh, in Los Angeles, saw each other three or four times a year. Although the relationship remained sexual, Marsh no longer required payment for sex. Marsh often asked Doe for money and Doe was “glad to help him out.” Doe’s financial support of Marsh grew to be substantial and Marsh eventually became financially dependent on him. For a short time, Doe employed Marsh in his business. However, Doe kept his relationship with Marsh a secret.

Doe operated a business selling a line of specialty items out of his residence in San Francisco. His primary customers were hotels, including the Fairmont and the St. Francis. In the spring of 1991, Doe’s sales began to decline and he was forced to accept a part-time job with a fraternal organization, the Scottish Rite, to supplement his income. He was fired a short time later, allegedly because of Marsh’s numerous calls to the organization’s office.

During 1991, Doe had borrowed over $20,-000 from his family, apparently to continue to provide money to Marsh. On September 1, 1991, Doe, now an elderly man, attempted suicide and was hospitalized for 10 days. After the suicide attempt, family members discovered why Doe cut his wrists. Said Doe, “I was all out of money.” Eventually, concerned family members learned about his relationship with Marsh. Suspecting that Marsh was criminally blackmailing Doe, they contacted the F.B.I.

When criminal proceedings began, the two men had not seen one another for about four years. However, they had maintained a constant relationship by telephone. Typically, Marsh called Doe collect and requested Doe to call him back at one of several pay phones in the Los Angeles area. During the ensuing conversations, Marsh usually requested Doe to wire him money via Western Union. The pattern of Doe’s payments to Marsh was peculiar and erratic. On a single day in April of 1991, for example, Doe sent Marsh nine separate payments via Western Union in amounts ranging from $35 to $145. When Doe’s ability to pay began to decline, the tenor and frequency of Marsh’s phone calls began to change. The messages Marsh left on Doe’s answering machine became violent and threatening.

After his family members contacted the F.B.I., federal agents instructed Doe to save the telephone messages that Marsh had been leaving on Doe’s answering machine. Marsh left the first of the recorded messages on September 4, 1991, the date on which this appeal focuses. In the first message, Marsh said, “Please have a hundred dollars down here in 15 minutes. Or I’ll be ... on my way to San Francisco.” A few minutes later he called again:

Yeah, I just found out you might be in the country for the week. Well, that’s fine, [victim’s name]. I’ll break into your place. But, uh, so don’t worry about that. I’ll, I’ll, I’ll find a way in. Now second of all, um, I’ll be calling the Thurman [an apparent mistranscription of Fairmont, one of Doe’s customers] Hotel ... and, uh, St. Francis, and I’ll find a location (unintelligible), um, if you don’t want to help me, at a time that ... you put me in this fucking spot, you’ve put me in this miserable motherfucking spot, Mister. So I’m gonna ... put you in the same spot back.... I’ve just got done calling the Scottish (unintelligible) and leaving a message. Uh, Steve (unintelligible) ... Marsh and I’m going to call the Thurman Hotel. And then I’m gonna call ... (unintelligible) and I’m gonna call Ev ... [end of message].

In the third message, Marsh apologized but asked Doe again to send the money he had requested earlier. These three calls formed the basis for Marsh’s conviction on Count I of the indictment, extortion and attempted extortion by wrongfully threatening economic loss in violation of 18 U.S.C. § 1951.

On October 7, 1991, Marsh left eight messages on Doe’s machine. In the first, at approximately 1:00 a.m., Marsh asked for $100 and said that Doe was “the most caring and kindest person that I’ve ever met in my life.” Marsh called back again several hours later saying that the money had not arrived and that he was being “chewed out,” apparently by his landlord for not having the rent money. Marsh’s tone was angry and he threatened to continue calling every few minutes or even seconds. Ten minutes later, Marsh called again, threatening in course terms to clog up Doe’s telephone line. In the next message, an hour-and-a-half later, Marsh hurled numerous epithets at Doe and concluded by saying “Just get ready to die,_ I’m going to kill ya.” Minutes later, Marsh called again and said ‘You don’t deserve to live. I’m comin to San Francisco. When I get up there you’re gonna die.” And so on.

An hour later Marsh called and resorted again to pleading for the money. Minutes later he called back yet again begging and pleading for money. In the final message five-and-a-half hours later, Marsh insulted Doe’s mother and his religion. He also claimed that he had a knife with which he planned to stab a woman at a real estate agency.

These October 7 calls formed the basis for Count II of the indictment, of which Marsh was acquitted. Count II alleged extortion and attempted extortion through the use of threatened force, violence or fear, as distinguished from the economic threat alleged in Count I. Count III essentially mirrored Count II, except that it was supported by four messages Marsh left on October 9,1991.

In the first of these October 9 messages, Marsh said that he was desperate for money and told Doe to call him back right away. If Doe did not comply, Marsh threatened:

“I might call the Triple A up right now. I’m gonna call the Fairmont Hotel, the Shriner’s Hospital. I’m gonna call, I’m gonna call every single mother fucker that I know and every person you do business with. I will call every account that you have.”

Triple A was one of Doe’s suppliers. In the next message, three minutes later, Marsh called Doe a pig and his mother a liar. In another message, Marsh stated, “I’m going to kill you.... I’m going to kill you with my own bare hands. I’m cornin’ to San Francisco.” He then added expletives and additional threats to MU: In the final message, Marsh said he was being threatened with a knife and implored Doe to call.

Marsh was soon arrested and indicted on the three counts of extortion or attempted extortion. Shortly after trial was under way, the defense filed a motion seeking permission to inspect Doe’s psychiatric records and to force Doe to submit to a psychiatric examination. Marsh argued that this evidence would support his defense that Doe gave Marsh money not because of the threats, but because of an independent motive; Marsh alleged that Doe had a “dependent personality disorder” that caused him to give Marsh the money. The district court denied the motion because it lacked foundation.

Later, the defense proffered expert testimony regarding Doe’s psychiatric condition. The expert, who had been observing Doe’s testimony during trial and had read the trial transcripts, was prepared to testify that Doe might possess a dependent personality disorder. The district court denied this motion as well.

At the end of the trial, the government submitted jury instructions drawn from the Ninth Circuit jury instruction manual and a standard treatise. The defense requested an additional jury instruction to clarify that the government must prove that Doe feared “economic loss, not simply a fear of loss of reputation.” The district court refused to give the modified instruction. However, the defense made no objection to the instructions that were given. After deliberating for approximately three hours, the jury sought additional guidance on whether the “harm” required under Counts II and III might include exposure or defamation. According to the defense, the jury’s uncertainty indicated a misunderstanding of the distinction between “fear of exposure” and “fear of economic loss” as those terms applied to Count I. The district court, however, refused to reinstruet the jury. When the jury returned, it acquitted Marsh of Counts II and III (threats to life) and convicted him on Count I, which alleged threats of economic harm on September 4.

At sentencing, the district court calculated the base offense for Marsh’s conviction at 11. Citing numerous factors not adequately considered in the Sentencing Guidelines, the judge then departed sharply upward, imposing a total sentence of five years.

Marsh now appeals both the conviction and the sentence.

DISCUSSION

I. Sufficiency of the evidence.

A. Standard of review.

We review the sufficiency of the evidence under the Jackson standard. “The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The elements of economic extortion are (1) a threat of economic harm that is (2) made with the purpose of obtaining money from the victim (3) that puts the victim in reasonable fear of economic harm. United States v. Greger, 716 F.2d 1275, 1278 (9th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984). Marsh first argues that the evidence is insufficient to support a conviction for extortion under Count I because the evidence failed to establish that Doe possessed a reasonable fear of economic harm. We agree that the evidence is insufficient to establish a reasonable fear of economic harm based on the September messages; although Doe freely testified to fear for his life, he simply was not asked whether he feared economic harm. Nevertheless, Count I also alleged attempted extortion, and the jury was instructed on its elements.

An extortion conviction requires evidence that Doe possessed a reasonable fear of economic harm. For attempted extortion, on the other hand, “the victim’s state of mind is not important. What is important is that the defendant attempted to instill fear in the victim.” United States v. Ward, 914 F.2d 1340, 1347 (9th Cir.1990). Consequently, we must affirm Marsh’s conviction of attempted extortion if the facts are sufficient that a rational jury could find that Marsh had the intent to extort money and that he took a substantial step to accomplish this end. See United States v. Runco, 873 F.2d 1230, 1232 (9th Cir.1989).

In interpreting threatening statements, we give considerable deference to juries, especially if the speaker’s words are ambiguous. United States v. Pascucci, 943 F.2d 1032, 1036-37, n. 3 (9th Cir.1991) (“Especially when ambiguous, the existence of a threat depends on the circumstances, which the jury interprets”). When considering the meaning of Marsh’s words on September 4, the jury was entitled to take into account all of the evidence properly admitted.

On September 4, Marsh left a message, telling Doe to “have a hundred dollars down here in 15 minutes. Or I’ll be ... on my way to San Francisco.” Minutes later, he called again, saying (among other things), “I’ll be calling the Thurman [an apparent mistranscription of Fairmont, one of R’s customers] Hotel ... and, uh, St. Francis ... you put me in this fucking spot, you’ve put me in this miserable motherfucking spot, Mister. So I’m gonna ... put you in the same spot back_ I’ve just got done calling the Scottish (unintelligible) and leaving a message.”

A reasonable interpretation of these statements is that Marsh was threatening economic harm when he said he would call Doe’s customers and his employer. It can scarcely be doubted that the purpose of the calls was to obtain money from Doe. Marsh’s statements demonstrate that he was facing a difficult economic situation. He threatened to put Doe in the “same spot back.” A rational jury could have inferred intent to instill a fear of economic harm from these words.

The fact that Marsh did not specify what he would say to Doe’s business customers does not necessarily militate against a finding that he attempted to instill a fear of economic loss; the jury could easily draw from Marsh’s many communications that he was a loose cannon and might say almost anything damaging to Doe. Although the jury, if it had chosen to do so, might reasonably have inferred that Marsh attempted to instill only a fear of embarrassment, the jury was equally entitled to infer as it did that Marsh intended to instill a fear of economic harm, especially in light of Marsh’s threat to put Doe in the “same spot back.” This fear would have been reasonable. After all, Marsh targeted Doe’s customers, not his friends.

The jury was entitled also to consider Marsh’s October statements to determine the meaning of the September 4 conversation. In the midst of a scatological diatribe in one of the messages on October 9, Marsh said, “I might call Triple A up right now. I’m going to call the Fairmont Hotel, the Shriner’s Hospital. I’m gonna call every single mother fucker that I know and every person that you do business with. I mil call every account that you have.” These statements certainly sound like an economic threat. The jury could rationally have determined that Marsh’s similar statements in September reflected an intent to instill fear of economic harm in Doe.

The only benign interpretations of Marsh’s statements are that he somehow did not intend the natural meaning of his words or that he somehow abandoned his attempt when he followed some of the threatening calls with apologetic ones. Doe’s long relationship with Marsh could have supported an inference that Marsh’s economic threats were not intended to be taken seriously, but the jury refused to make that inference. The jury was entitled to interpret the circumstances and the meaning of Marsh’s words and whether the relationship became abusive toward the end. And although voluntary abandonment is a valid defense to an extortion attempt, Marsh failed to present such a defense to the jury.

In addition to providing ample evidence of Marsh’s intent, the phone calls are unequivocal and substantial steps in furtherance of the extortion attempt. Undisputed evidence supports the jury’s conclusion that Marsh attempted to obtain money from Doe by instilling “economic” fear in him.

II. Jury instruction.

In evaluating a challenge to jury instructions, we must determine whether “the jury instructions as a whole are misleading or inadequate to guide the jury’s deliberations.” United States v. Joetzki, 952 F.2d 1090, 1095 (9th Cir.1991). Although a district court has substantial latitude to tailor jury instructions, the instructions must fairly and adequately embody the relevant law regarding the issues presented. United States v. Powell, 955 F.2d 1206, 1210 (9th Cir.1991).

Marsh sought to supplement the court’s instruction on “extortion-fear of economic loss” with a statement clarifying that “the fear must be a fear of economic loss, not simply a fear of loss of reputation.” Although the district court refused to give the amended instruction, the defendant failed to object to the instructions as given.

At trial, the defense maintained that Doe never feared for his livelihood. It theorized, rather, that Doe feared exposure. In instructing the jury, the district court clarified that Marsh would not be guilty of extortion unless the jury found a wrongful threat of economic harm. Although the court did not give an instruction distinguishing fear of economic loss from fear of loss of reputation, the instruction it gave was not inconsistent with the theory of the defense. Nor did it preclude the defense from arguing its theory. Because the proposed jury instructions were not erroneous, the district court did not err in rejecting Marsh’s requested instruction.

Marsh next asserts that a note from the jury during deliberations demonstrated the jury’s confusion as to the district court’s instructions regarding Count I. In a note to the judge, the jury asked whether the word “harm” in Counts II and III referred to fear of “economic loss, or exposure, defamation, etc.” However, the jury had stricken out the words “economic loss.” According to Marsh, the fact that the jury struck through the words “economic loss” proves that the jury equated economic loss with exposure [apparently of Doe’s homosexuality or homosexual encounters]. In response to the note, the district court brought the jury back to the courtroom and questioned the members about the note. The court asked the jury foreperson whether the jury was concerned about Count I. The jury foreperson assured the judge that the jury was concerned with Counts II and III only. Satisfied that the questions pertained to Counts II and III only, the district court refused to reinstruct the jury regarding Count I. In view of the district court’s efforts to insure that the jury was not confused regarding Count I, Marsh has failed to convince us that the jury’s questions regarding Counts II and III had any bearing on their understanding of the proof on Count I. Any errors in instructing on Counts II or III are harmless because Marsh was acquitted of those counts.

III. Expert psychiatric testimony.¹

We review for abuse of discretion the district court’s refusal to allow an expert to testify regarding a witness’s psychiatric condition. United States v. Rahm, 993 F.2d 1405, 1409-10 (9th Cir.1993).

The defense proffered the testimony of an expert witness to establish that Doe had a “dependent personality disorder.” The defense asserted that the expert testimony was relevant “because it provides a basis for arguing that—that it’s because of the nature of the relationship that he was giving [Marsh] the money and not for some other reason.” The district court denied the motion, refusing to allow the expert to testify.

Marsh argues that our decision in United States v. Rahm, 993 F.2d 1405 (9th Cir.1993), requires reversal. We reject that contention for two reasons. The first reason is that, because we affirm the conviction on the basis of attempted extortion rather than extortion, the proffered expert testimony is greatly diminished in importance. Marsh sought to introduce evidence regarding Doe’s “dependent personality disorder” to prove that Marsh’s telephone calls had not instilled the requisite fear in Doe. As we noted earlier, the crime of attempted extortion requires no examination of the victim’s state of mind. See Ward, 914 F.2d at 1347. Consequently, the trial court’s decision to exclude the testimony had relatively little effect on the attempt conviction. Any relationship between the proffered psychiatric evidence and Marsh’s state of mind in making his economic threats is far too attenuated to compel its admission.²

Second, the nature of the relationship between Marsh and Doe was fully set out for the jury. It was uncontested that for most of the 24 years of that relationship, Doe’s payments to Marsh were voluntary. The jury was quite able to evaluate Marsh’s harsh messages in light of that relationship,³ as is well evidenced by its acquittal of Marsh on the counts alleging threats to Doe’s life. At least with respect to the crime of attempted extortion, the district court in the exercise of its discretion properly could have concluded that the expert evidence would not have been of assistance to the jury. See United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973); Fed.R.Evid. 702.

IV. The Sentence

We review de novo a district court’s decision to depart upward for “unusual circumstances.” United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en banc). We review related factual findings for clear error. Id. If an invalid factor is considered in sentencing, we must remand for resentencing unless we conclude “on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.” Williams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1121, 117 L.Ed.2d 341 (1992).

The district court characterized Marsh’s behavior as “cruel and ruthless” because Marsh knew of Doe’s advanced age, 79, and his fear of exposure. The court also found “extreme psychological injury,” citing Doe’s “attempt[s] to commit suicide on two occasions.” Further, the court found that because of Marsh’s efforts to obtain money by extortion, Doe “lost substantial assets and business. He is now living in a home for the aged.” Additionally, the court considered Marsh’s anti-Semitic language and “the threats to harm [Doe’s] mother.”

The record fails to support the existence of several of the facts that the court cited in support of its upward departure. As far as the record shows in this case, no payment of money to Marsh by Doe was involuntary prior to September 4,1991. The factor that the court referred to more than once, Doe’s impoverishment, apparently was not caused by Marsh’s threats. According to Doe’s own testimony, most of the money that he gave Marsh was given voluntarily because Doe “was glad to help him out.” As Doe told the probation officer, over the course of 24 years he had given Marsh about $200,000. Doe sought a part-time job in May of 1991 because his own business had deteriorated. According to his own testimony and that of his niece, he was still voluntarily providing support to Marsh at that time.

In departing from the Guidelines a court must “limit its consideration of psychological injury to the counts of conviction.” United States v. McAninch, 994 F.2d 1380, 1387 (9th Cir.1993). Each of the two suicide attempts on which the court relied to find “extreme psychological injury” preceded the crime of which Marsh was convicted. One such attempt was not established at trial. The record fails to divulge when it occurred except that, according to the district court’s statements at the sentencing hearing, it preceded the September 1, 1991 attempt that was discussed at trial. Doe attempted suicide on September 1, not necessarily because of Marsh’s alleged extortion attempts, but because he had run out of money. At this point, he had run out of money not because of any extortion alleged or proven by the government but because he voluntary gave Marsh large amounts of money.

The district court was inaccurate as to other facts as well. For example, Marsh made no actual threat to injure Doe’s mother; she had been dead for ten years. And although Marsh’s anti-Semitic outburst was truly offensive, it occurred on October 7, 1991, and was part of the basis for Count II of the indictment. Marsh was acquitted of that count. Consequently, the insulting language is not an independent justification for an upward departure in this case.

On the basis of these clearly erroneous facts, the district court imposed a sentence two-and-a-half times as great as that specified by the Sentencing Guidelines for the offense level found by the district court. Because of the number of errors and the magnitude of the departure, we are confident that errors cannot be harmless. Accordingly, we must vacate this sentence and remand for resentencing.

CONCLUSION

The government failed to elicit the testimony from Doe that would be necessary to support a conviction for the completed crime of extortion. However, the record is sufficient to affirm the conviction for attempted extortion; a rational trier of fact could have found beyond a reasonable doubt that Marsh attempted to extort money from Doe by threatening to call his customers. The district court’s jury instructions in this case were adequate. Only at the sentencing phase did the district court commit reversible error. Consequently, we AFFIRM the conviction, VACATE the sentence and REMAND for resentencing.

1 . Marsh's request to conduct a psychiatric examination on the victim was unsupported by any authority. Because the victim's competency to testify was not in dispute, Marsh had no legal basis to compel the victim to undergo a psychiatric examination. We "have never held that the defense may compel witnesses to be examined.” Gilpin v. McCormick, 921 F.2d 928, 931 (9th Cir.1990).

2 . In Rahm, the expert testimony regarded the defendant's mental capacity to know whether the currency she was attempting to pass was counterfeit. Rahm, 993 F.2d at 1414. The proffered testimony in the present case concerning the nature of the relationship between Doe and Marsh bears far less directly on Marsh’s intent in threatening to contact Doe’s customers.

3 . Again by way of contrast, in Rahm the evidence regarding interpretation of tests was beyond the understanding of the average juror; ”[m]oreover, Nelson's proffered testimony related to Rahm’s specific perceptual difficulties, not to general human deficiencies that the jury could understand from their own experiences.” Rahm, 993 F.2d at 1414.