United States v. DiDonna

United States Court of Appeals
For the First Circuit
No. 16-1469
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES P. DIDONNA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Howard, Chief Judge,
Selya, Circuit Judge,
and McConnell, District Judge.
Judith H. Mizner, Assistant Federal Public Defender, with
whom Federal Defender Office was on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom William D. Weinreb, Acting United States Attorney, was on
brief, for appellee.
August 2, 2017

Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. In this case, the jury convicted
defendant-appellant James P. DiDonna of attempted Hobbs Act
extortion, see 18 U.S.C. § 1951(a), and attempting to collect an
extension of credit by extortionate means, see id. § 894(a). On
appeal, the defendant challenges the sufficiency of the evidence
across the board. After careful consideration, we conclude that
the evidence is sufficient to sustain the defendant's conviction
on the extortion charge. "Extension of credit," though, is a term
of art, and when that term is properly understood, the evidence is
insufficient to sustain the defendant's conviction on the
remaining charge. Accordingly, we affirm in part and reverse in
part.
I. BACKGROUND
"We rehearse the facts in the light most hospitable to
the verdict, consistent with record support." United States v.
Maldonado-García, 446 F.3d 227, 229 (1st Cir. 2006). In the
process, we draw all reasonable inferences in favor of the verdict.
See id. at 231.
Raymond Buck (Buck) and his wife, Linda, own Archer
Angus, a cattle farm in Chesterville, Maine. They raise and sell
grass-fed Maine beef. In 2009, the defendant approached the Bucks
and offered his services as a sales representative. The Bucks
initially declined his offer but, a year later, they reversed
course and joined forces with the defendant.
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The arrangement was never reduced to writing. Yet, its
main points — with one notable exception — are undisputed. The
defendant toiled as an independent contractor, marketing Archer
Angus beef primarily to restaurants. The Bucks paid him a ten
percent commission on restaurant sales and a five percent
commission on all other sales. The record is tenebrous, though,
as to whether the defendant was entitled, upon termination of the
relationship, to commissions for future sales on accounts that he
had originated. The defendant says that he was; the Bucks say
that he was not.
Once affiliated with Archer Angus, the defendant sold
the farm's beef to some of Boston's best-known restaurants. He
also developed a relationship with a premium grocer. Despite these
added sales, Archer Angus struggled: the farm had cash-flow
problems, exacerbated by the fact that some of its new customers
did not pay on time. Paradoxically, Archer Angus sometimes had to
scramble to fill existing orders. To smooth out this wrinkle,
Archer Angus (heedless of its boast that its cattle were grass-
fed and locally raised) began purchasing some beef from a farm in
Pennsylvania (a farm that, for aught that appears, gave Archer
Angus no assurances about the cows' diet).
By the summer of 2012, Buck's disappointment with Archer
Angus's sales trends reached critical mass. Around the same time,
Buck was experiencing difficulty in contacting the defendant. On
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July 17, 2012, Buck sent the defendant an e-mail, unilaterally
terminating the relationship. The defendant did not reply for
almost five months. When he did respond — in a December 6, 2012
e-mail — he demanded his unpaid commissions. After Buck
transmitted an initial accounting, the defendant sought recompense
in January of 2013 for specific sales that he claimed had been
omitted from the accounting. He made no mention of remuneration
for any sales occurring after July.
Buck agreed with the defendant's proposed adjustments
and submitted a revised payout figure ($16,713.06). That sum was
significant in terms of Archer Angus's cash flow, and the Bucks
had to borrow the money. When the funds were secured, they put
them in escrow with their attorney, Thomas Peters, and notified
the defendant. Once again, the defendant did not respond.
In May of 2013, Peters wrote to the defendant, reminding
him that he still had the money in escrow. On June 14, the
defendant telephoned Peters and said that he wanted more money.
He added that if his demand was not satisfied, he would either
embarrass Archer Angus or put the farm out of business altogether.
Peters — who viewed himself mainly as an escrow agent — referred
the defendant to Buck. Peters thereafter informed Buck about the
defendant's statements.
Roughly a month later, the defendant called Peters
again. In that call (which took place on July 23), the defendant
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advised Peters that he had not heard from Buck and that he
continued to expect remuneration for his silence.
On August 13, the defendant and Buck finally spoke. Buck
recorded the call. After exchanging brief pleasantries, the
defendant explained what lay behind his demand for more money:
"I've come across information in detail that if exposed would be
disastrous for the future of your business." The defendant warned:
"[T]he information that I have [] is basically information that
will be exposed[.] I have information, attorneys lined up in
multiple states. I have boards. I have agencies. I have
commissions. . . . In addition to [] probably [ninety] percent of
your clients that will know about this, in addition to media
outlets." He then asserted that Buck was "misrepresenting what
[he was] selling" — an apparent reference to the fact that not all
Archer Angus beef was from Maine and that the animals' diet was
unknown. The defendant refused to quantify his demand for more
money, instead pressing Buck to make him an offer. Some
representative statements follow:
 "I'm looking for you to look at the big picture
of this and what this is really worth to you."
 "[Y]ou need to ask what the future of your
business is worth to you, because it will all
be gone. And whatever . . . you misrepresented
to your clients, . . . you're gonna be on the
hook for it."
 "I'm looking to you to sit down, take a step
back, it's not a time to be emotional, or
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stubborn, or defensive. It's not a time to
procrastinate and it's certainly not a time to
be cheap."
The defendant told Buck that he was "giving [him] one week" to
propose a settlement amount. When Buck stated that he expected
the defendant to name a figure, the defendant demurred, saying
"[Y]ou're gonna risk being exposed in a week! It's that simple.
And if you wanna roll the dice on that, if you wanna call my bluff,
knock yourself out, cause everything you have is gonna be gone."
At that juncture, Buck accused the defendant of blackmail. The
defendant retorted, saying "This is not blackmail, because it's
the truth and you know it's the truth."
During this call, the defendant also asked that Buck
turn over "the money that we agreed to in January" within a week
(an apparent reference to the sum held in escrow, which the
protagonists already had agreed was due to the defendant for pre-
termination commissions). He also claimed, without elaboration,
that additional compensation was due to him in the wake of the
terminated relationship. Buck countered that Archer Angus's
records showed that the defendant was not owed any commissions
beyond the previously agreed amount. The defendant rejoined,
cautioning that Buck was risking "being exposed."
The August 13 call led Buck and Peters to contact the
Federal Bureau of Investigation (FBI). Following a plan developed
as a result of that contact, Peters reached out to the defendant
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by e-mail on August 21, with an eye toward setting up another
telephone call. In that e-mail, Peters noted that he saw "the
wages issue" and "the other issue" as "two separate issues." The
defendant did not disavow this characterization: in an August 22
e-mail, he demanded payment of the previously agreed amount,
together with some further "settlement offer made by your client."
He set a deadline of August 27 for both the agreed-upon payment
and the further offer. He went on to add that "I have identified
thousands and thousands of dollars that I have not been paid on
(that can be proven) and which is not included in the current
amount that you have in escrow."
On September 3, Peters called the defendant. Buck was
present but did not speak. During this call (which was recorded),
Peters again summarized the defendant's claims as raising "two
issues": the "back money" owed to the defendant for unpaid pre-
termination commissions and a payment in an as-yet-unspecified
amount. In contrast to the payment for past commissions (which
would be made by check), Peters suggested that the second issue be
settled by means of a cash payment, without any concomitant
paperwork. The defendant expressed some reluctance to accept cash
with no documentation, but Peters, citing the transaction's
"probabl[e] illegal[ity]," did not budge.
Two weeks later, Peters, Buck, and the defendant took
part in another call designed to complete their negotiations. In
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this call (which also was recorded), the defendant characterized
his demand for more money as a "business development settlement."
The parties eventually agreed to a $40,000 cash payment. The
following colloquy ensued:
Buck: I have to get this money[,] Jim. How
long are you gonna give me to raise it[?]
Defendant: You want to . . . do it in
installments, . . . I'm fine with that.
Buck: No, we'll settle out the whole thing and
you'll get your money and go away. I'm tired
of friggin with you.
After a brief discussion as to the place and manner of delivery,
the protagonists returned to the question of timing:
Buck: So when?
Defendant: Is it . . . next week[?]
Buck: Need a day and time. I've gotta have it
here.
Defendant: Now that's uh, how does [Peters's]
schedule look?
Peters: I don't need to be involved. . . . As
long as [Buck's] got enough time to get it
together, it doesn't matter to me.
Buck: Week from today sound good to you? Same
time, same place?
Defendant: [L]et's do Wednesday.
Peters: What's the date? . . .
Defendant: [I]s it the 25th?
Peters: [L]et me look. Next Wednesday[.]
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Defendant: 25th. Wednesday the 25th.
At the conclusion of this September 17 call, the participants
agreed that Buck would leave the additional money at Peters's
office in Lewiston, Maine for pickup.
The date and place of the pickup were subsequently
changed, apparently at the instance of the FBI. Although the
record is murky on this point, it seems that the FBI made an
"operational decision" so that it could "better control" the
transaction and satisfy its specialized planning requirements.
The net result was that the pickup was rescheduled to take place
at a rest stop on the Massachusetts Turnpike on October 3, 2013.
On October 3, an undercover FBI agent, posing as a
courier, met the defendant at the rest stop. The defendant was
accompanied by Joseph Parmakian, a retired law enforcement
officer. The agent turned over an envelope, supposedly containing
the cash but actually containing scrap paper. The defendant took
the envelope, and he and Parmakian left the rest stop.
In due season, a federal grand jury sitting in the
District of Massachusetts charged the defendant, in a superseding
indictment, with one count of attempted extortion in violation of
18 U.S.C. § 1951(a) (count one) and one count of use of
extortionate means to collect and attempt to collect an extension
of credit in violation of 18 U.S.C. § 894(a) (count two). A five-
day jury trial eventually ensued. At the close of all the
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evidence, the defendant moved for judgment of acquittal. See Fed.
R. Crim. P. 29. The district court denied the motion, and the
jury convicted the defendant on both counts. The court sentenced
the defendant to concurrent incarcerative terms of one year and
one day, plus two years of supervised release. This timely appeal
followed.
II. ANALYSIS
The defendant challenges the sufficiency of the evidence
regarding both counts of conviction. "[W]e review the denial of
his motion for judgment of acquittal de novo." See United States
v. George, 841 F.3d 55, 61 (1st Cir. 2016). In that endeavor, we
ask "whether, after assaying all the evidence in the light most
amiable to the government, and taking all reasonable inferences in
its favor, a rational factfinder could find, beyond a reasonable
doubt, that the prosecution successfully proved the essential
elements of the crime." United States v. Chiaradio, 684 F.3d 265,
281 (1st Cir. 2012) (quoting United States v. O'Brien, 14 F.3d
703, 706 (1st Cir. 1994)).
Here, the counts of conviction, though related, pose
different sufficiency questions. Consequently, we consider them
separately.
A. Hobbs Act Extortion.
We start with the defendant's conviction on count one.
This count charges a violation of 18 U.S.C. § 1951(a), which
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forbids "obstruct[ing], delay[ing], or affect[ing] commerce or the
movement of any article or commodity in commerce, by robbery or
extortion or attempt[ing] or conspir[ing] so to do." Extortion,
in turn, is defined as "the obtaining of property from another,
with his consent, induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official right." Id.
§ 1951(b)(2). Such a crime is commonly known as Hobbs Act
extortion.
In this case, the government charges that the defendant
attempted to extort money through the wrongful use of fear. "Under
the Hobbs Act, 'fear' encompasses fear of economic loss, including
the loss of business opportunities." United States v. Cruz-Arroyo,
461 F.3d 69, 74 (1st Cir. 2006). The pivotal question, then, is
whether the evidence is sufficient to prove that the defendant
wrongfully employed threats of economic ruin.1
To prove fear of economic loss, "the government must
show that the victim reasonably feared that noncompliance with the
putative extortionist's terms would result in economic loss." Id.
We think that the government has carried this burden. For his
part, Buck reasonably feared the potential for economic loss. The
substance of the defendant's statements to Buck — both those made
directly to Buck and those made to Peters on the understanding
1 The defendant does not challenge the sufficiency of the
government's proof as to the other elements of Hobbs Act extortion.
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that they would be shared with Buck — is essentially undisputed.
The defendant repeatedly threatened Buck and Buck's business
(Archer Angus) with economic harm in an effort to obtain money
from Buck (and, by extension, from Archer Angus). The record is
strewn with such threats. To select but a few examples:
 The defendant told Peters, on the
understanding that Peters would relay the comment
to Buck, that he would put Archer Angus out of
business if he was not paid more money.
 The defendant told Buck directly that he had
"information in detail that if exposed would be
disastrous for [Buck's] business."
 The defendant warned Buck that "if you wanna
call my bluff, knock yourself out, cause everything
you have is gonna be gone."
Manifestly, Buck interpreted these statements
(reasonably, we think) as a threat to wreck his business. The law
is clear that a person may not use threats of economic harm to
obtain money or property to which he has no claim of right. See
United States v. Sturm, 870 F.2d 769, 773 (1st Cir. 1989); United
States v. Kattar, 840 F.2d 118, 124 (1st Cir. 1988). The
sufficiency of the evidence of Hobbs Act extortion thus turns on
whether the defendant had a claim of right to the additional money
that he was attempting to garner.
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We caution, though, that whether the defendant's claim
of right is legally correct is not the determinative factor. See
Sturm, 870 F.2d at 774. Rather, the government must prove, by
direct or circumstantial evidence, that the defendant "knew that
he was not legally entitled to the property that he [either]
received" or attempted to receive. Id.
The defendant argues that he believed that he was owed
the $40,000 payment in settlement of legitimate claims and that
his threats were simply a species of "hard bargaining." The
government argues that the defendant's demand had nothing to do
with the settlement of claims for sums owed in consequence of the
terminated business relationship. Instead, the government regards
the defendant's statements as an attempt to extort Buck by
demanding hush money in exchange for silence about information
that could have damaged the Bucks' business. If the government's
assessment of the defendant's statements is correct, then the
defendant had no claim of right: he could not reasonably have
thought that he had a right to any additional money.
The relative persuasiveness of these competing arguments
depends on which inferences a factfinder chooses to draw from the
raw facts. In our view, the evidence was sufficient for a rational
jury, drawing reasonable inferences in the government's favor, to
find beyond a reasonable doubt that the defendant knew that he had
no claim of right to the money demanded. We explain briefly.
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To begin, the defendant made clear, in the earlier
conversations, that the price for his silence was an additional
payment. He also made clear the dire consequences that would ensue
if Buck turned him away empty-handed. The jury was entitled to
give the defendant's words their ordinary meaning and to treat his
demand for an additional payment, coupled with his threats of
economic harm, as extortion. See United States v. Cruzado-
Laureano, 404 F.3d 470, 482 (1st Cir. 2005).
The defendant would have us read the record differently.
He says that despite his bluster, his real intent was to secure
additional compensation that he was owed (that is, commissions on
post-termination sales to customers whom he had brought to Archer
Angus). This view of the situation has some support in the record.
It cannot be gainsaid that, during the various conversations, the
defendant made some remarks that a jury could find consistent with
his claim that he was merely seeking unpaid post-termination
commissions. For example, the defendant told Buck at one point
that he could prove that Archer Angus owed him "additional
thousands and thousands of dollars." At another point, the
defendant characterized what he was seeking as a "business
development settlement."
These allusions, though, were never accompanied by any
detail as to what actual post-termination commissions the
defendant believed that he was owed. And when Buck pressed the
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defendant to identify those commissions, the defendant retreated
to his threat of "expos[ing]" Buck and Archer Angus.
In all events, what was not said seems to buttress the
government's version of what was transpiring. The defendant never
asked Buck either for a specific sum or for compensation for
particular accounts. Instead, the defendant insisted, over and
over again, that Buck decide how much the defendant's silence was
"worth to [him]." If the defendant thought that he had been
unfairly deprived of certain commissions, the ordinary course
would have been to ask for an accounting of profits with respect
to particular customers (as the defendant did in January of 2013,
when Buck first sought to pay him his accrued pre-termination
commissions).
The defendant's conduct during the negotiation process
also gives rise to reasonable inferences that support the jury's
verdict. For one thing, when Buck pointedly accused the defendant
of blackmail, the defendant did not claim that he was owed the
money for services rendered but, rather, retorted that "it's the
truth" — an apparent reference to the accuracy of the compromising
information that the defendant had threatened to air. For another
thing, when Peters distinguished between "the wages issue" and
"the other issue," the defendant never protested that there was
only a single issue — the amount of earned compensation due to
him. And, finally, when Buck challenged the defendant to identify
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any particular commission that had not been accounted for, the
defendant deflected the question by reiterating his admonition
that he would "expose[]" Buck. Jurors are fully within their
rights to make commonsense inferences, see O'Brien, 14 F.3d at
708, and it is a commonsense inference that if the defendant was
actually seeking compensation for money legitimately owed, he
would have mentioned at some point either the amount he was owed
or the manner in which it could be computed.
Last — but not least — the jury was not bound to credit
the defendant's isolated statements regarding money owed to him.
See United States v. Jimenez-Perez, 869 F.2d 9, 12 (1st Cir. 1989)
(deeming it "apodictic that a trier of fact is not bound to accept
the self-serving stories of persons accused"). Rather, it could
have regarded those statements as self-serving attempts to gild
his criminal act with a specious veneer of legitimacy.
In the last analysis, it was for the jury to say, on
this mottled record, whether the defendant was seeking a payment
for his silence (as the government contends) or a payment for his
services (as the defendant contends). See United States v. Olbres,
61 F.3d 967, 973 (1st Cir. 1995) (explaining that a jury is free
to choose among alternative interpretations of the evidence, so
long as the jury's choice is reasonable). After all, it is the
jury's responsibility to weigh the evidence in its totality,
resolve contradictions in the facts, and gauge the credibility of
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the witnesses. See O'Brien, 14 F.3d at 707. That is precisely
what the jury did in this case.
We conclude, without serious question, that a rational
jury could have found beyond a reasonable doubt — as this jury did
— that the defendant's demands were not for unpaid post-termination
commissions but for hush money. So, too, we conclude that a
rational jury could have found beyond a reasonable doubt — as this
jury did — that the defendant wrongfully employed extortionate
threats of economic harm to ensure that his demands for money to
which he had no claim of right were satisfied. No more is exigible
to defenestrate the defendant's challenge to his Hobbs Act
conviction. As we have said, a "court of appeals ought not
disturb, on the ground of insufficient evidence, a jury verdict
that is supported by a plausible rendition of the record." United
States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992).
B. Extension of Credit.
The defendant also challenges, on sufficiency grounds,
his conviction on count two. That count charged him with violating
18 U.S.C. § 894(a), which criminalizes, as relevant here, the "use
of any extortionate means" in the collection or attempted
collection of "any extension of credit." In the defendant's view,
the evidence is insufficient to show either that he used
extortionate means or that he made any extension of credit.
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Because we agree that the evidence does not show that the defendant
made an extension of credit, we start — and stop — there.
Section 894(a) "has a broad reach." United States v.
Dzhanikyan, 808 F.3d 97, 105 (1st Cir. 2015). That reach is not
limited to conventional loans. See id. Rather, the statute
encompasses any "extension of credit," defined as "any loan [or]
agreement, tacit or express, whereby the repayment or satisfaction
of any debt or claim, whether acknowledged or disputed, valid or
invalid, and however arising, may or will be deferred." 18 U.S.C.
§ 891(1).
The key to the existence of an extension of credit is
the creditor's agreement to defer payment. See United States v.
Hoyle, 237 F.3d 1, 7 (1st Cir. 2001). In the absence of a
conventional loan, "the government must prove that the creditor
manifested an assent (even if only unilaterally and even if only
tacitly) to defer payment." Dzhanikyan, 808 F.3d at 106.
Here, the government says that the defendant extended
credit to Buck in no fewer than three instances. First, during
the August 13 telephone call, the defendant told Buck that he was
"giving [Buck] one week" to make him an offer in order to secure
his silence and one week to pay him "the money . . . agreed to in
January." Second, in his August 22 e-mail to Peters, the defendant
issued essentially the same two-part ultimatum, this time with a
deadline of August 27. Third, in their September 17 telephone
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call — after the "settlement amount" had been negotiated — the
defendant and Buck agreed that the funds ($40,000) would be
delivered eight days later.
The government's first theory need not detain us. This
theory is premised on statements made in the August 13 conversation
and the August 22 e-mail. The theory is amplified in the
government's appellate brief, which suggests that the phrasing of
the defendant's demands for the pre-termination commissions
admittedly due ($16,713.06) supports a finding that credit was
extended. But there is a rub: the government did not advance this
theory below. The indictment charged the defendant, in pertinent
part, with knowing participation "in the use of extortionate means
. . . to collect and attempt to collect an extension of credit
from [Buck], d/b/a [Archer Angus], to include $40,000.00 in U.S.
currency, and to punish [Buck] . . . for the nonrepayment thereof."
The government's arguments at trial tracked this theory of the
case: in both its opening statement and its summation, the
prosecution trained its fire exclusively on the defendant's
demands for a settlement offer and the ensuing arrangement for
payment of the settlement amount ($40,000). Consonant with the
language of the indictment and the government's professed theory
of the case, the district court's jury instructions with respect
to count two mentioned only the $40,000 settlement.
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In dealing with criminal defendants, the government must
turn square corners. It cannot use bait-and-switch tactics,
relying on one theory of the case in the indictment and during the
trial and then — after obtaining a favorable verdict — relying on
an entirely different theory to uphold the verdict. See Dunn v.
United States, 442 U.S. 100, 106 (1979). So, too, a reviewing
court cannot affirm a criminal conviction on the basis of a theory
that was never advanced in the trial court. See Chiarella v.
United States, 445 U.S. 222, 236 (1980); see also United States v.
Boulahanis, 677 F.2d 586, 591 (7th Cir. 1982) (rejecting theory of
extension of credit that was "different" from "theory of the
extension of credit that the government actually pressed [at
trial]").
The government's second theory fails for a different
reason. That theory focuses on the defendant's demands that Buck
produce a settlement offer by certain deadlines. Although this
theory was actually argued to the jury, we think it is evident
that no rational jury could have found beyond a reasonable doubt
that those demands constituted extensions of credit. After all,
an agreement to defer repayment necessarily implies that if the
debtor were both willing and able, payment could have been made
prior to the deferral. See Hoyle, 237 F.3d at 2, 6. Otherwise,
there would be nothing to defer. Cf. United States v. Stokes, 944
F.2d 211, 215 (5th Cir. 1991) (holding that contract did not create
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extension of credit when "[n]o payment was [yet] due" under
contract). That is the fatal flaw in the government's theory.
The very nature of the defendant's demands for a settlement offer
makes pellucid that there could be no extension of credit: the
amount of the debt was undetermined and thus impossible either for
Buck to satisfy or for the defendant to defer.
This leaves the September 17 telephone call.
Considering that call in context, we do not think that the
defendant's statements and conduct, even when taken in the light
most favorable to the government, are sufficient to establish an
extension of credit.
Prior to September 17, the parties had not agreed about
whether Buck would make any payment beyond the $16,713.06
admittedly due for unpaid pre-termination commissions. In the
September 17 call, Buck and the defendant agreed to an additional
settlement of $40,000. The defendant expressed a willingness to
let Buck pay the settlement amount in installments, but Buck
declined. Instead, he focused on when the cash should be delivered
and suggested a "[w]eek from today." The defendant proposed
September 25 (one day later) as more convenient, and the parties
agreed to that date. The government argues that the eight-day
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delay between the demand for the $40,000 and the September 25
delivery date constitutes an extension of credit.2
A delay between demand and payment, without more, does
not constitute an extension of credit. In United States v.
Wallace, the Second Circuit held that even when a defendant
"tolerated a delay in payment" but did so without agreeing to defer
payment, such "impatient forbearance was no more than a reprieve
on his extortionate threats" and did not violate section 894(a).
59 F.3d 333, 340 (2d Cir. 1995). So it is here: although the
defendant agreed to a payment date that was eight days in the
future, the evidence simply does not support a reasonable inference
that he agreed to defer the debt. In this case, as in Wallace,
the delay was nothing more than a reprieve with respect to the
defendant's extortionate threats.
All of the raw facts point in this direction. Until
September 17, there was no settlement and no agreed amount. The
record makes luminously clear that, on September 17, the parties
were negotiating all the terms of the nascent settlement (including
the date for its consummation). When a meeting of the minds
finally occurred, Peters insisted that the settlement amount be
paid in cash. Since the parties were located in different states
2 While the delivery date was later changed to October 3, that
change was at the instance of the FBI. The government has not
argued that, on its theory of the case, the defendant can be held
responsible for any extension of credit beyond September 25.
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and the payment was to be made in cash, it was impossible to
complete the transaction at the time of the call. Instead, it was
necessary to schedule a mutually convenient time to wrap up the
matter. That is exactly what transpired — no more and no less.
As we have indicated, the touchstone of a section 894(a)
prosecution is whether there was an agreement to defer the payment
of a debt. See Dzhanikyan, 808 F.3d at 106; Hoyle, 237 F.3d at 7.
The existence vel non of such an agreement is necessarily context-
specific. Making such a determination "will often require a
particularized review of both the creditor's conduct and the
surrounding context." Dzhanikyan, 808 F.3d at 106-07. In this
case, the circumstances — the statements of the protagonists, the
impossibility of immediate payment, the practical problems
incident to transporting cash to another state, the need to
determine a mutually convenient time and place for the exchange,
and the shortness of the interval between the demand and the
delivery — undermine any inference that the defendant agreed to
defer payment of the debt.
Seen in context, the only reason for the brief delay was
to accommodate the logistics of payment, not to defer Buck's
obligation to pay. Mutual convenience dictated the final
arrangement. Moreover, the defendant neither said nor did anything
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to indicate that he was not "consistently mainfest[ing his] demand
for immediate payment."3 Stokes, 944 F.2d at 215.
The government's contrary argument depends on an
interpretation of section 894 that echoes the interpretation that
this court rejected in Dzhanikyan. There, we debunked the notion
that "a mere demand for payment . . . suffices to show that there
has been an agreement to defer payment and thus an 'extension of
credit.'" 808 F.3d at 106.
Practically speaking, a mere demand for payment is all
that the government has shown in the case at hand. The infirmity
of its argument is highlighted by the lack of a limiting principle:
any defendant who makes an extortionate demand and receives from
the debtor a promise of payment at a specific time, even an hour
later or a day later, would be guilty of violating section 894(a).
And this would hold true even where, as here, immediate payment
would have been either impossible or impracticable at the time the
demand was made. Such a result would, in effect, reinstate the
rule that we rejected in Dzhanikyan.
Our concerns about the sufficiency of the evidence on
count two are heightened by two other considerations. First, the
government's theory of guilt blurs the distinction between section
3 Of course, the defendant did at one point raise the
possibility of installment payments. That option, though, was
swiftly rejected by Buck, and the protagonists never revisited the
subject.
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894(a) and Hobbs Act extortion. Section 894(a) criminalizes the
collection of an extension of credit by extortionate means. Unlike
the Hobbs Act, it does not criminalize mere collection by
extortionate means of monies owed. In other words, "[s]ection 894
does not make it a crime to use extortion to collect debts, but
only to exact repayment of credit previously extended."
Boulahanis, 677 F.2d at 590.
A section 894(a) violation is distinguished from Hobbs
Act extortion based on whether there was a true "agreement to defer
payment of the debt[]." Hoyle, 237 F.3d at 7. Conflating the two
offenses would turn a blind eye to congressional intent and would
unfairly augment the government's already extensive armamentarium
of potential charges. Cf. Wallace, 59 F.3d at 339 (noting danger
of "convert[ing] every common law extortion into a federal
loansharking offense" (quoting United States v. Wallace, 856 F.
Supp. 843, 847 (S.D.N.Y. 1994))).
Second, the government's theory is at odds with the
realities of the marketplace. Say, for example, that X owns a
farm in Maine. He wishes to buy a used truck from Y, who operates
a dealership in Massachusetts. X takes a particular vehicle back
to Maine to test-drive it. He then calls Y, the two negotiate,
and they agree on a price, which is to be paid in cash. They then
set a time and place for the consummation of the transaction (that
is, for X to deliver the cash to Y), based on the practicalities
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of the situation and their mutual convenience. On the government's
theory, whatever date they may select would reflect an extension
of credit by Y, even though Y consistently manifested his demand
for payment. That may be true in some alternate universe — but it
is not true in the real world.
To sum up, the evidence, taken in the light most
flattering to the government, is sufficient to show that the
defendant attempted to extort $40,000. But that is all: on this
record, a rational jury could not conclude beyond a reasonable
doubt that the defendant manifested his assent to defer payment or
used extortionate means to "exact repayment of credit previously
extended." Boulahanis, 677 F.2d at 590. The same conversation
that established the debt also set out the payment terms, and the
defendant never agreed to defer payment past the date initially
set. It follows inexorably that the defendant's conviction on
count two must be reversed.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the defendant's conviction on count one and reverse his
conviction on count two. Because the sentences for the affirmed
and reversed convictions were for essentially the same conduct and
were to run concurrently, we see no need for resentencing on count
one. See United States v. Abreu, 952 F.2d 1458, 1472 (1st Cir.
1992); cf. United States v. Francois, 715 F.3d 21, 34 (1st Cir.
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2013) (remanding for resentencing where the vacated sentence was
"central to the district court's calculation of [the defendant's]
overall sentencing package").
Affirmed in part and reversed in part.
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