United States v. Temkin

• Decision Date: 13 August 2015
• Docket Number: 12–50136.,Nos. 12–50103,s. 12–50103
• Citation: 797 F.3d 682
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Eugene Darryl TEMKIN, Defendant–Appellant. United States of America, Plaintiff–Appellant, v. Eugene Darryl Temkin, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

797 F.3d 682

UNITED STATES of America, Plaintiff–Appellee

v.Eugene Darryl TEMKIN, Defendant–Appellant.

United States of America, Plaintiff–Appellant

v.Eugene Darryl Temkin, Defendant–Appellee.

Nos. 12–50103

12–50136.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 11, 2014.

Filed Aug. 13, 2015.

Michael Clough (argued), Oakland, CA, for Defendant–Appellant/Cross–Appellee.

Mark R. Yohalem (argued), Elizabeth R. Yang and E. Martin Estrada, Assistant United States Attorneys; Robert E. Dugdale, Chief Assistant United States Attorney; André Birotte Jr., United States Attorney, Los Angeles, CA, for Plaintiff–Appellee/Cross–Appellant.

Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. 2:10–cr–00813–SVW–1.

Before: KIM McLANE WARDLAW and MARSHA S. BERZON, Circuit Judges, and WILLIAM E. SMITH, Chief District Judge.^*

OPINION

WARDLAW, Circuit Judge:

Eugene Darryl Temkin challenges the sufficiency of the evidence underlying his three counts of conviction for (1) solicitation to commit a crime of violence; (2) attempted extortion in violation of the Hobbs Act; and (3) use of interstate commerce facilities in the commission of murder-for-hire. Temkin also raises the defense of entrapment. While we conclude that sufficient evidence supports Temkin's convictions and that Temkin was not entrapped, we agree with the Government that the district court materially erred in calculating the correct base offense level at sentencing. Accordingly, we affirm Temkin's conviction but vacate his sentence and remand for resentencing.

I. Factual and Procedural Background

This dark tale arises from a failed gambling venture in Equatorial Guinea, which was formed by two former drug trafficking associates, defendant Temkin, and his associate of more than twenty years, Michael Hershman. In 2000, Temkin mortgaged property to loan Hershman and another partner $500,000 as his stake in the gambling venture. When the venture failed in 2003, everyone lost their money, but Temkin also ultimately lost his mortgaged property. Temkin began demanding repayment of the loan, and became dissatisfied when Hershman sent him only about $1,000 a week. In 2004, Temkin began a campaign of harassment and threats against Hershman to get his money back. Although Hershman ultimately returned the money through the settlement of a lawsuit in 2006, Temkin escalated his demands for the ever-increasing amounts of money he believed Hershman still owed him, bombarding Hershman with harassing and threatening phone calls and emails. Temkin next began “acting out” his obsession with getting even more money from Hershman. He broke into and emptied a Hershman family storage unit containing family possessions and financial documents, and tracked down Hershman's hospitalized daughter by pretending to be her uncle. Temkin hacked into Hershman's email account and computer, tracked his whereabouts in foreign countries, and personally threatened Hershman, at one point brandishing a .45–caliber gun at him.

Then Temkin got serious. He attempted to recruit associates to assist in extorting and murdering Hershman. In around 2006, Temkin suggested to Larry Morrison, a computer-savvy drug dealer who had helped hack Hershman's computer to track him down in Belgium, that he poison Hershman. Having researched options to kill Hershman by poison, Morrison suggested instead that they use a poison that had an antidote—they could poison Hershman, extort his money, and then let him live; a proposition Temkin rejected out of hand. Before they could proceed on this course, Morrison was arrested for drug trafficking.

Temkin then turned to John Malpezzi, a former attorney convicted of drug trafficking, offering him money to kill Hershman. Malpezzi visited Hershman at his Dominican Republic gaming operation, and warned him of Temkin's extortion/murder plan. Malpezzi and Hershman turned to an attorney for advice; the attorney advised Malpezzi to begin recording his conversations with Temkin. Malpezzi took the recordings to Los Angeles Sheriff's Department detectives who asked him to introduce Temkin to “Chet,” an undercover sheriff's detective who would pose as a hitman.

On November 21, 2009, Malpezzi and Chet met with Temkin. Temkin had given “a great deal of thought” to killing Hershman, and he and Chet continued to meet over the next few months to work out a plan. Temkin proposed pushing Hershman off a boat hundreds of miles from shore or staging a “suicide.” At one point, Temkin also instructed Chet to rape Hershman's wife and daughter, while Hershman and his son watched, in order to extort more money from Hershman.

The Sheriff's Department apprised the FBI of the situation in December of 2009. The Sheriff's Department indicated that Temkin had given Chet everything that a hitman would need except money, but they did not have enough to file charges without the exchange of money. Therefore, in March of 2010, the Sheriff's Department and the FBI decided to “burn” the investigation by warning Temkin that they were aware of his interactions with a known hitman. Law enforcement informed Temkin that he was being watched and instructed him to leave Hershman and Hershman's family alone.

In May 2010, after Temkin showed signs that he did not intend to follow these instructions, an undercover FBI agent, posing as a different hitman named “Pavel,” contacted Temkin. During the initial call, Temkin indicated that he may have secured the “services” of someone else, so Pavel agreed to call Temkin back in one week. On July 7, 2010, Pavel called Temkin and stated, “I understand that you may need my services after all.” Temkin responded, “Well strangely enough, yes.” Meeting the next day, July 8th, 2010, Temkin told Pavel to “very strongly persuade [Hershman and his business partner] to move the money from the Colombian account into my Montevideo account.” Temkin indicated that Pavel should force Hershman to transfer $15 million into Temkin's bank account. Temkin gave Pavel an address for Hershman's apartment in Spain, information about a bank account through which Pavel could transfer the money to Temkin, and copies of the intended victims' passports. Temkin also instructed Pavel that he wanted Hershman, Hershman's wife, and Hershman's business partner to “go for a very long boat ride. Yes. Out to sea.” Temkin gave Pavel $3,000 in cash to cover expenses, noting “[t]hat's as much as I can move.” At the end of the meeting, Pavel said to Temkin, “I walk out [of] here, the job is done. They're not going to come back from the trip. It's all done. You understand that?” Temkin responded, “I understand that.”

After their July 8th meeting, Temkin left two voicemail messages for Pavel. In the first, left on the evening of July 8th, Temkin stated that “there is some strong interest” in him from law enforcement, and therefore they “might have to rethink.” In a second message left on the morning of July 9th, Temkin indicated, using coded language, that another plan “may work equally as well.” The calls went unreturned, and Temkin was arrested on July 14, 2010.

Following a bench trial, Temkin was convicted of three counts: (1) solicitation to commit a crime of violence under 18 U.S.C. § 373(a) ; (2) attempt to interfere with commerce by threats and violence under 18 U.S.C. § 1951(a) ; and (3) the use of interstate commerce facilities in the commission of murder-for-hire under 18 U.S.C. § 1958(a) (“murder-for-hire”). The district court sentenced Temkin to six years of imprisonment and three years of supervised release. In this timely appeal, Temkin challenges the sufficiency of the evidence for all three counts and argues that he was entrapped. In a cross-appeal, the Government challenges the sentence imposed by the district court as both procedurally and substantively unreasonable.

II. Jurisdiction and Standard of Review

We have jurisdiction to review Temkin's conviction and sentence under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291. Following a bench trial, a district court's conclusions of law are reviewed de novo and findings of fact are reviewed for clear error. OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1096 (9th Cir.2011). In reviewing a district court's judgment in a bench trial, sufficient evidence supports a conviction if, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see United States v. Magallon–Jimenez, 219 F.3d 1109, 1112 (9th Cir.2000). “We review a district court's construction and interpretation of the United States Sentencing Guidelines Manual (‘Guidelines') de novo and its application of the Guidelines to the facts for abuse of discretion.” United States v. Popov, 742 F.3d 911, 914 (9th Cir.2014).

III. Conviction

A. Solicitation of a Crime of Violence

Under Count 1, Temkin was convicted of solicitation to commit a crime of violence, namely murder-for-hire. Temkin argues that there was insufficient evidence to establish that he “actually intended that Pavel kill Hershman.” Temkin first argues that he created a condition precedent at his July 8, 2010 meeting with Pavel. Temkin asserts he knew that this condition precedent would never be satisfied, and thus there was insufficient evidence of his intent to go through with the murder. Second, Temkin argues that even if there were sufficient evidence to establish a plan to kill Hershman, he later abandoned that plan in his July 8th and 9th voicemails for Pavel. The district court rejected both arguments, finding that “[a]t the July 8th meeting, the defendant just reached a boiling point and crossed the line.” The district court found that during that meeting “the defendant knowingly solicited, commanded, induced or otherwise persuaded another to travel in interstate...