FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]
H. Mizner, Assistant Federal Public Defender, with whom
Federal Defender Office was on brief, for appellant.
T. Quinlivan, Assistant United States Attorney, with whom
William D. Weinreb, Acting United States Attorney, was on
brief, for appellee.
Howard, Chief Judge, Selya, Circuit Judge, and McConnell,
District Judge. [*]
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
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.
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.
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.
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).
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 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.
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
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.
a month later, the defendant called Peters again. In that
call (which took place on July 23), the defendant advised
Peters that he had not heard from Buck and that he continued
to expect remuneration for his silence.
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 stubborn, or
defensive. It's not a time to procrastinate and it's
certainly not a time to be cheap."
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
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
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
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
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.
weeks later, Peters, Buck, and the defendant took part in
another call designed to complete their negotiations. In 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
brief discussion as to the place and manner of delivery, the