U.S. v. Pascucci, 90-10388

• Decision Date: 23 August 1991
• Docket Number: No. 90-10388,90-10388
• Citation: 943 F.2d 1032
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John L. PASCUCCI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1032

943 F.2d 1032

UNITED STATES of America, Plaintiff-Appellee, v. John L. PASCUCCI, Defendant-Appellant.

No. 90-10388.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 1991.

Decided Aug. 23, 1991.

Harley Kurlander, Tucson, Ariz., for defendant-appellant.

Jon R. Cooper, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before HUG, POOLE and FERGUSON, Circuit Judges.

HUG, Circuit Judge:

John L. Pascucci appeals his conviction following a jury trial for attempted extortion affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) (attempted extortion charge), and transmitting in interstate commerce a communication threatening to injure the reputation of another, in violation of 18 U.S.C. § 875(d) (threat to reputation charge). He contends that, with respect to the attempted extortion charge, there was insufficient evidence to establish an effect on interstate commerce. He further contends that, with respect to the threat to reputation charge, there was insufficient evidence to establish that a threat was made. Pascucci also challenges the sentence imposed upon him by the district court under the Sentencing Guidelines. He argues that the district court erred when it (1) increased his offense level based on an abuse of trust, (2) increased his offense level based upon an obstruction of justice, and (3) departed upward from the Guidelines and doubled the maximum sentence for his offense level. We affirm Pascucci's convictions and sentence in all respects.

I.

On July 26, 1989, John L. Pascucci, along with codefendant Kelly Jo Murphy, was indicted by a federal grand jury for conspiracy to commit an extortion affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) (Hobbs Act Conspiracy) (Count 1), and an attempted extortion affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) (Hobbs Act). On December 13, 1989, a superseding indictment was filed, adding a third count, transmitting in interstate commerce a communication threatening to injure the reputation of another, in violation of 18 U.S.C. § 875(d).

Pascucci's jury trial commenced on March 26, 1990, at which time the following evidence was introduced:

On June 23, 1988, Stephen Gieck, a 28-year-old married businessman from Overland Park, Kansas, was in Peoria, Illinois. Gieck was on a business trip for his employer, Ford/New Holland, a subsidiary of Ford Motor Company. Gieck's responsibility as the dealer placement representative was to travel the five-state area of Kansas, Missouri, Nebraska, Iowa, and Illinois.

While in Peoria, Gieck met a woman calling herself "Lisa" and purporting to be a stewardess. Gieck and Lisa met in a hotel bar and went to Lisa's apartment in Peoria where they engaged in numerous sexual acts. Gieck testified that he gave Lisa very little biographical information about himself; only that his name was Steve and that he worked for Ford Motor Company in marketing. He testified that he did not tell Lisa was later identified as Kelly Murphy, a Deputy United States Marshal who worked in Peoria, Illinois. Unbeknownst to Gieck, most of the encounter between him and Murphy was tape recorded, including the conversation in the bar, the conversation during the ride to Murphy's apartment and during the sexual encounter.

                Lisa his last name and did not mention his wife's name.   Gieck also testified that when he left Lisa's apartment that night she pleaded with him to stay but expressed no anger over anything that happened at that time
                

In late March 1989, an investigation was initiated by the Olathe, Kansas Police Department after they were informed by Gieck that he had been receiving harassing telephone calls from an individual named "Tony" since July 22, 1988. "Tony" was later identified as the defendant-appellant John Pascucci, then a chief inspector of the United States Marshal's Service at its headquarters in Washington, D.C. Altogether approximately 13 to 18 telephone calls were received at Gieck's home and office pertaining to the one-night affair that he had with Murphy.

During one of the first telephone calls Gieck received from "Tony," Murphy was also on the telephone. At that time, they were asking only for an apology from Gieck for coming in and out of Murphy's life so quickly, as well as for his alleged performing of unpermitted sex acts on her that evening.

Gieck eventually changed to an unlisted telephone number. He also moved to Olathe, Kansas, in order to avoid having a listed address. He testified that "Tony" initially did not ask for any money, but he did indicate that an audio tape and/or pictures might be sent to his wife and employer if he continued to avoid the telephone calls. On March 13, 1989, Gieck's wife received a package containing an audio tape of the encounter between Gieck and Murphy along with a letter stating that Gieck had been unfaithful and requesting their new phone number. ¹ At trial, Pascucci admitted to sending this package. Gieck and his wife listened to the first portion of the tape together. It was at this point that they decided to go to the authorities.

An undercover officer, Detective Roger LaRue, acted as a friend of the victim's for the purpose of negotiating with "Tony." After several tape recorded conversations with the Detective LaRue, "Tony" asserted that the matter could be taken care of if he were paid $5,000. The undercover officer had several additional conversations with "Tony" who was in Tucson, Arizona, at the same time, and it was arranged that a package, addressed to "P." would contain $5,000 and would be sent to him at the Sheraton El Conquistador Hotel.

FBI agents in Tucson, Arizona, were contacted by Detective LaRue. It was arranged that agents would set up a surveillance at the hotel. The agents had a description of the package, and at approximately 9:30 a.m. on June 30, 1989, a United States Parcel Service (UPS) truck arrived at the hotel. The UPS worker unloaded several packages, including one that was identified as being the package addressed to "P". Pascucci was observed speaking to the driver as they approached the hotel entrance. The UPS driver took the package to the concierge's desk inside the hotel On March 30, 1990, the jury delivered a verdict of guilty as to the Hobbs Act extortion charge and the threat to reputation charge. However, the jury found Pascucci not guilty as to the conspiracy charge. A separate jury acquitted codefendant Murphy on all counts.

                lobby while Pascucci walked to the hotel cashier.   At that time, a man, later identified as working for the United States Marshal's Service picked up the package from the concierge's desk and gave it to Pascucci.   Pascucci was arrested outside the hotel with the package in his possession
                

On July 13, 1990, the district court sentenced Pascucci to a term of three years for the attempted extortion charge, a concurrent sentence of one year for the threat to reputation charge, and a period of supervised release of three years to commence upon Pascucci's release from confinement. Pascucci timely appeals.

II. ATTEMPTED EXTORTION

Pascucci contends that there was insufficient evidence to establish a nexus between the extortionate act and interstate commerce. We review the evidence in a light most favorable to the Government to determine whether the jury could reasonably have found extortion. See United States v. Greger, 716 F.2d 1275, 1278 (9th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984).

The statutory language of the Hobbs Act ² displays a 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). Consistent with this approach, this court has held that an effect on interstate commerce is established by proof of an actual impact, however small, or in the absence of actual impact, by proof of a probable or potential impact. See United States v. Zemek, 634 F.2d 1159, 1173 n. 20 (9th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981); United States v. Phillips, 577 F.2d 495, 501 (9th Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 107, 58 L.Ed.2d 125 (1978). "Only a de minimus effect is necessary ... and the effect [on commerce] need only be probable or potential, not actual." Phillips, 577 F.2d at 501 (citations omitted). "It is enough that the scheme, if successful, would have affected commerce." United States v. Rushdan, 870 F.2d 1509, 1512 (9th Cir.1989) (citations and internal quotations omitted).

The principles expressed in these authorities lead us to conclude that the Government has shown a sufficient nexus to interstate commerce to support a conviction under 18 U.S.C. § 1951 in this case. By showing that the defendant made a credible threat to deliver embarrassing materials directly to the victim's employer, who was then engaged in interstate commerce, the Government demonstrated that Pascucci introduced a potential impact on interstate commerce.

Undoubtedly, there would have been an effect on interstate commerce if Pascucci had carried out his threat. Gieck's employer was engaged in interstate commerce and Pascucci threatened to deliver the tapes directly to the company. The delivery of the tape would have had the requisite effect on interstate commerce. See, e.g., Phillips, 577 F.2d at 501. Here, however, Pascucci's plan was ruined when he was caught. This fact, however, does not absolve Pascucci of liability. As we stated earlier, the Government need not prove that Pascucci was successful in his scheme, see Rushdan, 870 F.2d at 1512, i.e., the Government need not show that Pascucci was successful in either delivering the tape to Gieck's employer or receiving the money. Such a requirement would not only be...