U.S. v. Goodoak, 87-1216

• Decision Date: 05 November 1987
• Docket Number: No. 87-1216,87-1216
• Citation: 836 F.2d 708
• Parties: 24 Fed. R. Evid. Serv. 805 UNITED STATES of America, Appellee, v. Robert D. GOODOAK, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 708

836 F.2d 708

24 Fed. R. Evid. Serv. 805

UNITED STATES of America, Appellee, v. Robert D. GOODOAK, Defendant, Appellant.

No. 87-1216.

United States Court of Appeals, First Circuit.

Heard Nov. 5, 1987.

Decided Jan. 8, 1988.

Thomas E. Dwyer, Jr. with whom Maurice T. Cunningham and Dwyer & Murray, Boston, Mass., were on brief, for defendant, appellant.

Michael G. Tracy, Sp. Asst. U.S. Atty., with whom Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, TORRUELLA and SELYA, Circuit Judges.

COFFIN, Circuit Judge.

This appeal presents the question whether, in a trial on a charge of attempted extortion, the target of the alleged threats may testify to and explain his state of mind at the time he allegedly was threatened. We hold that such evidence is relevant and that the particular state-of-mind evidence admitted in this case was not unfairly prejudicial. We therefore affirm appellant's conviction.

I.

Appellant Robert D. Goodoak was found guilty by a jury of attempted extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951 (1982). ¹ The evidence at trial indicated that between 1975 and 1979, Goodoak had performed various consulting services for the East Bay Development Corporation in connection with East Bay's real estate development projects in the Boston area. These services apparently included making illegal payoffs to public officials to grease the ways for East Bay projects. Goodoak believed that he had not adequately been compensated for these services, and law enforcement officials were pressuring him to reveal what he had done for East Bay. Therefore, in August of 1980, Goodoak began urging East Bay officials to pay up.

East Bay itself had come under federal scrutiny in connection with the payoffs and agreed to cooperate with the FBI in January of 1981. Thereafter, FBI Agent John Callahan began posing as an East Bay operative and handling East Bay's negotiations with Goodoak. Callahan taped his conversations with Goodoak, and these tapes along with Callahan's explanatory testimony formed the bulk of the government's case-in-chief. The tapes contained remarks by Goodoak that the jury could reasonably have interpreted as threats that, unless East Bay paid Goodoak a substantial sum of money, Goodoak would tell the authorities about his illegal activities on East Bay's behalf.

There was also evidence from which the jury could reasonably have concluded that Goodoak had used threats of physical injury in his attempt to obtain payment from East Bay and that Goodoak had the ability to make good on these threats. The jury heard a tape of a November, 1982 conversation with Callahan in which Callahan referred to an organized crime group in Somerville, a city adjacent to Boston where one of East Bay's projects was located. As Callahan referred to the Somerville group, Goodoak said "Well, then you know who I am then. All right." Goodoak went on to refer to a rival group in neighboring Charlestown as "the opposition." In the same conversation, Callahan said he had heard that one Jimmy Wakely, who had the "security contract" for East Bay, had "put the word on" an individual who had been making trouble for East Bay. The following colloquy ensued (ellipses in original):

Goodoak: Well no, that's exactly true, but, ah, Jimmy, ah, Jimmy worked with me and, ah, Jimmy can't do anything unless I okayed it. So what, ah, I'm just saying that this is, this is the situation. I know everything that happened and, ... I think your shopping center is gonna be one of the best shopping centers even with your other security because the word is out that nothing's to happen there and ...

In Somerville, and it's still staying that way up to today, so, ah ...

Callahan: Are you trying to tell me something? (Laughs).

Goodoak: Oh no, oh no, ah, no, that, that I will tell to the proper people if I have to tell them. It depends, it depends strictly what happens here between you and me.

In late March of 1983, Callahan told Goodoak that East Bay did not intend to pay him anything. Ten days later, Callahan received a call from Somerville tax assessor Robert Campo, who said that he had received an anonymous phone call threatening him and Callahan with violence unless East Bay paid Goodoak. On April 11, 1983, Callahan called Goodoak to complain about the threats; Goodoak replied that "the last thing you told me where I went out you said do whatever I have to do. So I'm telling everyone exactly that ... I'm being ah not dealt with in good faith and I'm telling everyone." Callahan asked Goodoak whether he thought threats of legs being broken went "a little bit over board," and Goodoak replied "No, I don't. Not a bit." He warned Callahan that "if you're street wise, you'd better really start to think because once I stop I can't stop. I as a matter of fact I have no control. They wouldn't even take Jimmy Wakely because he's too easy. They wouldn't use him he's too easy too good guy. I don't know whether you know what you're going into...." After further negotiations, in February of 1984 Callahan turned a sum of money over to Goodoak in exchange for Goodoak's promise that no harm would come to East Bay or Callahan. Goodoak was then arrested.

At trial, after the tape of the April 11 conversation was played for the jury, the government asked Callahan to describe his state of mind as of the end of the conversation. Over defense objection, Callahan testified that he was "very concerned." In response to a series of questions about he reasons for his concern, Callahan stated, again over defense objection:

I knew now after that phone call that Goodoak was making threats. I also knew from what Goodoak had told me in the past of his association with some people that he could cause these threats to be carried out. ²

... Mr. Goodoak told me in the past he was very close to Jimmy Wakely. In fact, he said Wakely couldn't do anything without checking with Goodoak first. The conversation in November of 1982, Goodoak and I were talking about the Somerville-Charlestown gang war between those two organized crime groups. Mr. Goodoak referred to the people from Charlestown as the enemy. We were talking about Somerville. He said, "Well, then, you know who I am."

... I also knew at this time from what Mr. Goodoak told me that he was associated with the Somerville organized crime group, that being the Winter Hill Gang, and I also knew that group is still flourishing.

At this point, Goodoak moved for a mistrial, arguing that Callahan's testimony that the Somerville group was called "the Winter Hill Gang" and was "still flourishing" was unfairly prejudicial. Goodoak asserted that the prejudicial effect could not be cured with a limiting instruction. The court denied the mistrial motion.

II.

On appeal, Goodoak makes two main arguments. First, he asserts that evidence of the intended victim's ³ state of mind is irrelevant in a prosecution for attempted extortion. Second, he maintains that, even if such evidence is relevant, Callahan's testimony explaining his state of mind should have been excluded as unfairly prejudicial. We consider these arguments in turn.

A. State-of-Mind Evidence

The Hobbs Act, 18 U.S.C. Sec. 1951, makes it a felony to obstruct, delay, or affect commerce by extortion, or to attempt or conspire to do so. Section 1951(b)(2) defines extortion 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." It is settled that to prove extortion it is necessary to show the generation of fear in the victim. United States v. Kelly, 722 F.2d 873, 878 (1st Cir.1983), cert. denied, 465 U.S. 1070, 104 S.Ct. 1425, 79 L.Ed.2d 749 (1984); see also United States v. DiCarlo, 565 F.2d 802, 807 (1st Cir.1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978).

It is equally well-settled that to prove attempted extortion it is sufficient merely to show an attempt to generate fear in the victim. E.g., United States v. Gambino, 566 F.2d 414, 419 (2d Cir.1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978); United States v. Frazier, 560 F.2d 884, 887 (8th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978); United States v. Quinn, 514 F.2d 1250, 1267 (5th Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1430, 47 L.Ed.2d 361 (1976); Carbo v. United States, 314 F.2d 718, 741 (9th Cir.1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498 (1964). Because evidence that the attempt was successful is not necessary, Goodoak argues, evidence of actual fear is irrelevant. Thus, he says, Callahan should not have been allowed to testify that he was "very concerned" by Goodoak's threats.

We disagree. In deciding whether the defendant's words and acts amounted to an attempt to induce fear, the jury is surely entitled to know whether those words and acts did in fact induce fear. Evidence that the defendant's conduct frightened the victim makes it more likely that the defendant was in fact attempting to frighten the victim. Conversely, evidence that the victim was not frightened makes it less likely that the defendant made such an attempt.

Of course, such evidence is by no means conclusive. Other evidence (including demeanor evidence) might show that the "victim" who testifies to his fear was so fainthearted as to feel fear even where an ordinary person might not have felt threatened. Or, in the case of an intended victim who testifies that he was not afraid, other evidence might show that he was made of unusually stern stuff, or that he felt safe from harm because he was cooperating with government agents or was himself a government agent. The key question remains that of whether there was an attempt to frighten, not whether fear actually was produced. As these scenarios suggest, state-of-mind evidence will be most relevant to that question...