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United States v. Didonna

United States Court of Appeals, First Circuit

August 2, 2017

JAMES P. DIDONNA, Defendant, Appellant.


          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.

          Before Howard, Chief Judge, Selya, Circuit Judge, and McConnell, District Judge. [*]

          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.

         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 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 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 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 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 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 ...

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