180 F.3d 55 (2nd Cir. 1999), 97-1711, United States v. Jackson
|Docket Nº:||97-1711(L), 97-1721, 98-1171.|
|Citation:||180 F.3d 55|
|Party Name:||UNITED STATES of America, Appellee, v. Autumn JACKSON, Boris Sabas, also known as Boris Shmulevich, and Jose Medina, also known as Yosi Medina, Defendants-Appellants.|
|Case Date:||June 09, 1999|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued June 22, 1998.
Appeals from judgments of the United States District Court for the Southern District of New York, Barbara S. Jones, Judge, convicting defendants of offenses related to the transmission of extortionate threats to injure another person's reputation, 18 U.S.C. §§ 371, 875(d), 1952(a)(3). Vacated and remanded.
Paul A. Engelmayer, Assistant U.S. Atty., New York, NY (MaryJo White, U.S. Atty. for the Southern District of New York, Lewis J. Liman, Ira M. Feinberg, Asst. U.S. Attys., New York, NY, on the brief), for Appellee. Edward S. Zas, New York, NY (The Legal Aid Society, Federal Defender Div., Appeals Bureau, New York, NY, on the brief), for Defendant-Appellant Jackson.
Donald Etra, Los Angeles, CA, for Defendant-Appellant Sabas.
Neil B. Checkman, New York, New York ( Beverly Vanness, on the brief), for Defendant-Appellant Medina.
Before: WINTER, Chief Judge, VAN GRAAFEILAND and KEARSE, Circuit Judges.
KEARSE, Circuit Judge:
Defendants Autumn Jackson, Jose Medina, and Boris Sabas appeal from judgments of conviction entered in the United States District Court for the Southern District of New York following a jury trial before Barbara S. Jones, Judge. Jackson and Medina were convicted of threatening to injure another person's reputation with the intent to extort money, in violation of 18 U.S.C. §§ 875(d) and 2 (1994); all three defendants were convicted of traveling across state lines to promote extortion, in violation of the Travel Act, 18 U.S.C. §§ 1952(a)(3) and 2 (1994), and conspiring to commit extortion, in violation of 18 U.S.C. § 371 (1994). Sabas was found not guilty of making extortionate threats. Jackson, Medina, and Sabas were sentenced principally to 26, 63, and 3 months' imprisonment, respectively, with each defendant's term of imprisonment to be followed by a three-year period of supervised release. On appeal, defendants contend chiefly that the district court failed to give proper jury instructions as to the nature of extortion. For the reasons that follow, we agree, and we accordingly vacate the judgments and remand for a new trial.
The present prosecution arises out of defendants' attempts to obtain up to $40 million from William H. ("Bill") Cosby, Jr., a well-known actor and entertainer, by threatening to cause tabloid newspapers to publish Jackson's claim to be Cosby's daughter out-of-wedlock. The witnesses at trial included Cosby, Jackson's grandmother, persons who had conversations with Jackson in which she demanded money from Cosby and threatened to injure his reputation if he did not pay, and a cooperating witness who had attended meetings during which defendants formulated and executed parts of their plan. The government also introduced, inter alia, recordings of messages left by Jackson, recordings of conversations in which Jackson demanded money from Cosby and threatened to injure his reputation if she were not paid, and documents found in the possession of Medina and Sabas. Taken in the light most favorable to the government, the evidence showed the following.
Jackson's Relationship With Cosby
In the early 1970s, Cosby had a brief extramarital affair with Jackson's mother, Shawn Thompson. After Jackson was born in 1974, Thompson told Cosby that he was the father. Cosby disputed that assertion, and according to Jackson's birth certificate, her father was one Gerald Jackson. Jackson's grandmother testified, however, that she and Thompson told Jackson, as Jackson was growing up, that Cosby was her biological father. The grandmother told Jackson that Cosby had said that, so long as they "didn't tell anyone about it, that he would take care of her mother and her, and take care of his responsibility." (Trial Transcript ("Tr."), 1459.)
For more than 20 years after Jackson's birth, Cosby provided Thompson with substantial sums of money, provided her with a car, and paid for her admission to substance-abuse treatment programs. Thompson repeatedly telephoned him saying that she needed money, and in the course of the conversations she would usually reiterate her claim that Cosby was Jackson's father and state that she did not want to embarrass Cosby's wife. Between 1974 and mid-1994, Cosby gave Thompson a total of more than $100,000, typically having traveler's checks or cashier's checks issued in the name of an employee rather than his own name. In 1994, Cosby established a trust fund for Thompson, which was administered by John P. Schmitt, a partner in the New York City law firm that represented Cosby. The trust fund provided Thompson with $750 a week for as long as Cosby chose to fund the trust. Thompson received approximately $100,000 in payments from this fund from mid-1994 until the fund was exhausted, and not replenished, in early 1997.
In addition, Cosby, who had funded college educations for some 300 persons outside of his own immediate family, and had spoken with Jackson by telephone at least once during her childhood, had offered to pay for the education of Jackson and of Thompson's other two children. In about 1990, after a telephone conversation with Jackson's grandmother, Cosby became concerned that Jackson's education was being hampered by conditions at her California home, and he arranged to have Jackson finish high school at a preparatory school in Florida associated with a Florida college. Cosby thereafter also created a trust to pay for Jackson's college tuition and for certain personal expenses such as food, rent, utilities, and medical costs while Jackson was attending college. This trust was administered by Schmitt's law partner Susan F. Bloom. Jackson subsequently enrolled in a community college in Florida. While Jackson was in school, Cosby spoke with her by telephone approximately 15 times to encourage her to pursue her education, telling her that although he was not her father, he "loved her very, very much" and would be a "father figure" for her. In these conversations, she addressed him as "Mr. Cosby."
In April 1995, Bloom learned that Jackson had dropped out of college, and Bloom therefore ceased making payments to Jackson from the college education trust. From the spring of 1995 until December 1996, Jackson had no contact with Cosby or any of his attorneys.
The Events of December 1996 and early January 1997
In the fall of 1996, Jackson and her then-fiance Antonay Williams were living in California and working for a production company in Burbank, California, headed by Medina. Medina's company, which operated out of his hotel suite, was attempting to produce a children's television show. Jackson, Williams, and Sabas had acting roles in the show; along with cooperating witness Placido Macaraeg, they also had administrative positions. Jackson worked without pay, but she expected to receive a commission when the television show was sold.
In December 1996, Jackson reinitiated contact with Cosby. Within a four-day period, she telephoned him seven times and left urgent messages asking him to return her calls. In one instance, Jackson identified herself as "Autumn Cosby," a message that Cosby perceived as "some sort of threat." (Tr. 850.) When he returned Jackson's call, he reproached her for using his name. Jackson described the project on which she was working, told Cosby that she was homeless, and asked him to lend her $2100. Cosby initially refused and suggested that she instead get an advance from the person for whom she was working. After further reflection, Cosby called Jackson back and agreed to send her the $2100 she had requested, plus an additional $900; he urged her to return to school, and he renewed his offer to pay for her education. Cosby directed his attorneys to tell Jackson that he would pay for her education and related expenses if she returned to school, maintained a B average, and got a part-time job. Bloom sent Jackson a letter dated December 13, 1996, setting out the conditions and requesting, if Jackson agreed to the conditions, that Jackson sign and return a copy of the letter to Bloom. Jackson did not comply.
On January 2 and 3, 1997, Jackson spoke with Bloom and Schmitt by telephone and asked that she be sent money for food, lodging, and tuition. Bloom responded that Jackson had not shown that she was enrolled in school. Bloom and Schmitt reiterated that Cosby would not pay for Jackson's support until she enrolled in school and secured employment for eight hours a week; they advised her that her unpaid work at Medina's production company did not satisfy the condition that she get a part-time job.
Following this rejection of her request for money, Jackson made a series of calls to business associates of Cosby, threatening to publicize her claim to be his daughter and thereby harm his reputation. For example, on January 6, she left a voice-mail message for an administrator at Eastman Kodak Company, whose products Cosby has endorsed. The administrator testified that the caller "said that she was Autumn Jackson, she was the daughter of Dr. William J. [sic ] Cosby, Jr., that she knew that Mr. Cosby had a contract with Kodak, and that it was very important that I call her, she was calling in regards to their relationship and his actions or non-actions, and that she was prepared to go to [a] tabloid." (Tr. 121.)
Also on January 6, Jackson left a voice-mail message for Peter Lund, president and chief executive officer of CBS, whose television network currently carried Cosby's prime-time program. Stating that her name was Autumn Jackson, Jackson said:
I am the daughter of Doctor William Cosby, Jr. I need to speak with you, um, regarding, regarding...
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