U.S. v. Buffey, s. 89-5042

• Decision Date: 05 April 1990
• Docket Number: Nos. 89-5042,89-5132,s. 89-5042
• Citation: 899 F.2d 1402
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guy BUFFEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Corrine COFFMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1402

899 F.2d 1402

58 USLW 2650

UNITED STATES of America, Plaintiff-Appellee, v. Guy BUFFEY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Corrine COFFMAN, Defendant-Appellant.

Nos. 89-5042, 89-5132.

United States Court of Appeals Fourth Circuit.

Argued Feb. 8, 1990.

Decided April 5, 1990.

Jerald Elton Jones, Jones, Williams, West & Jones, Clarksburg, W.Va., Stephen Godfrey Jory, Elkins, West Virginia, for appellants.

David Earl Godwin, Asst. U.S. Atty., (argued), William A. Kolibash, U.S. Atty., on brief, Clarksburg, W.Va., for appellee.

Before WIDENER, PHILLIPS, and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Guy Buffey and Corrine Coffman appeal their conviction for conspiracy to extort under the Hobbs Act, 18 U.S.C. Sec. 1951, challenging the existence of federal jurisdiction.

I

The case involves an attempt by Buffey and Coffman to extort money from James F. Allen. The underlying facts of the extortion attempt are not in dispute. On October 18, 1986, Coffman, apparently not for the first time, had a sexual encounter with Allen which, unbeknownst to Allen Coffman captured on audio tape. Another man, Robert Luchuck, was present during the sexual encounter. The tape came into Buffey's hands. Buffey in turn told an acquaintance, Salvatore Marra, of his possession of the tape. Unbeknownst to Buffey, Marra was acting as an FBI informant. Through informant Marra, FBI Agent J.C. Raffety learned of the tape. Raffety persuaded Marra to meet with Buffey and tape record any discussions they might have relating to criminal activities. On November 10, 1986, Buffey and Marra met and Marra tape recorded Buffey's attempts to solicit Marra to extort money from Allen by use of the audio tape of the sexual encounter. Marra agreed.

In furtherance of what the Government claims to have been an attempt to preserve Marra's status as an informant, Raffety devised and implemented the following scheme. First Raffety telephoned Allen warning him of the possible extortion attempt. Next, pursuant to Raffety's instructions, Marra telephoned Allen to effectuate a staged extortion attempt during which he demanded from Allen $20,000. That same evening, Raffety interviewed Coffman, eliciting from her an admission that she had taped her sexual encounter with Allen to obtain money from him. Coffman, apparently under the impression that Allen had contacted the FBI, went to Buffey and informed him of what she thought to be the case. Shortly after the conclusion of the interview with Coffman, Buffey called Marra to cancel the extortion plan. Consistent with Raffety's plan, the extortion attempt was terminated without an untimely revelation of Marra's status.

Allen was the Chairman of the Board and majority stockholder of the James F. Allen Company ("Company"). The Company engaged in interstate commerce in that it performed construction contracts for the United States Corps of Engineers in various states. At trial, Allen agreed that, due to his advancing years, his position in the Company had become that of a "figurehead," leaving the actual operation of the Company to his son. However, Allen further testified that, despite his figurehead status, he enjoyed access to the corporate funds. Allen was a wealthy man but he testified that he normally kept only about one to three thousand dollars in his personal accounts. Much of his wealth existed in the form of non-liquid assets, including a property in Bath County, Virginia worth approximately $250,000, a home in Clarksburg, Virginia, about $50,000 in municipal bonds and over 50% of the Company's stock. Allen apparently also enjoyed personal ownership of as much as $50,000 in certificates of deposit.

Coffman and Buffey were convicted under the Hobbs Act for conspiracy to extort money from Allen. Each received a sentence of twelve years. Both now appeal. ¹

II

To obtain a conviction under the Hobbs Act ("Act"), the government must prove

(1) that the defendant coerced the victim to part with property; (2) that the coercion occurred through the "wrongful use of actual or threatened force, violence or fear or under color of official right"; and (3) that the coercion occurred in such a way as to affect adversely interstate commerce.

United States v. De Parias, 805 F.2d 1447, 1450 (11th Cir.1986), cert. denied, 482 U.S. 916, 107 S.Ct. 3189, 96 L.Ed.2d 678 (1987). Buffey and Coffman were convicted of conspiracy to violate the Act. Thus, the burden upon the government was to prove that the acts that Buffey and Coffman conspired to commit would have satisfied each of the Act's three elements had they been committed. See United States v. Rosa, 560 F.2d 149, 153 (3d Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 135 (1977). Buffey and Coffman do not dispute the government's success in satisfying the Act's first two elements. Instead, they contend that the government failed to prove that the acts they conspired to commit would constitute "coercion [that has] occurred in such a way as to affect adversely interstate commerce." De Parias, 805 F.2d at 1450.

A

The issue we face involves a special, distinct species of the Act's interstate commerce requirement because, as the government must concede, the acts Buffey and Coffman conspired to commit would not have affected interstate commerce directly. The terms of the demand Buffey and Coffman conspired to make related to revelation of Allen's sexual activity, not to the Company's business affairs. Cf. United States v. Jarabek, 726 F.2d 889, 900-01 (1st Cir.1984) (jurisdictional element satisfied where failure to comply with extortion demand would have directly affected business contracts of entity in interstate commerce).

However, under what has come to be known as the depletion of assets theory, the government may satisfy the Act's jurisdictional predicate indirectly if it can show a reasonable probability that the defendants' actions would have the effect of depleting the assets of an entity engaged in interstate commerce. United States v. Elders, 569 F.2d 1020, 1025 (7th Cir.1978). The facts of the present case suggest a subspecies of depletion of assets law in that the depletion of the Company's assets would result, not from a demand placed directly upon the Company, but from the access to the Company's assets that Allen, the victim of the extortion, enjoyed. See De Parias, 805 F.2d 1447; United States v. Carpenter, 611 F.2d 113 (5th Cir.), cert. denied, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980); United States v. Johnson, 516 F.2d 209 (8th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 112, 46 L.Ed.2d 85 (1975). In addition to recognizing an indirect basis of jurisdiction, the cases also establish that the "jurisdictional predicate may be satisfied though the impact upon commerce is small, and it may be shown by proof of probabilities without evidence that any particular commercial movements were affected." United States v. Brantley, 777 F.2d 159, 162 (4th Cir.1985), cert. denied, 479 U.S. 822, 107 S.Ct. 89, 90, 93 L.Ed.2d 42 (1986).

The looseness with which courts have applied the interstate commerce element, finding the element satisfied even where the effect on interstate commerce is indirect, minimal and less than certain, reflects the Act's "purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence." Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). However, broadly as the extension of the interstate commerce requirement has spread, we are still a federal, not a unitary, government and, to satisfy the Act, the government still must show that an effect on interstate commerce is reasonably probable. As one court has stated the matter in the course of finding that the jurisdictional predicate was not satisfied:

In each case, ... a nexus has been required between the extortionate conduct and interstate commerce in order to establish federal jurisdiction. That nexus may be de minimis, but it must nonetheless exist. Additionally, the connection with or effect on interstate commerce must have been at least a realistic probability at the time of the extortion.

Elders, 569 F.2d at 1023-24 (citations omitted). See United States v. Mattson, 671 F.2d 1020, 1025 (7th Cir.1982) (reversing conviction for lack of federal jurisdiction even under a depletion of assets theory); see also Brantley, 777 F.2d at 162 (there is "nothing in [the case law] to suggest that the necessary commercial connection may be shown by producing a child of fantasy"). Accordingly, conviction of Buffey and Coffman would have been proper only if there was a reasonable probability that Allen would have tapped into the Company's assets to satisfy the extortion demand that Buffey and Coffman conspired to make.

B

We begin our factual analysis by noting that, as the government concedes, Allen was a wealthy man. For two reasons we infer from Allen's wealth that it is highly unlikely that Allen would have satisfied an extortion demand by means of the Company's assets rather than his personal assets. First, the intended extortion demand was based on the threat of revelation of a somewhat indiscreet sexual activity that Allen presumably would not want revealed. Although it is true that Allen had access to the Company's assets, his son ran the Company and it is probable to the point of virtual certainty that Allen would eventually be forced to explain for what purpose he had withdrawn money from the Company. It is much more likely that Allen would have resorted to his readily available personal assets to satisfy any extortion demand. In such a way, the case before us differs from those involving abductions or other scenarios in which the success of the extortion attempt is not predicated on revelation of embarrassing information about the victim of the extortion. See De Parias (kidnapping of son of...