United States v. John L. Pascucci

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: 1 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…

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…

dissenting in part:

It is well-established that the government must prove every element of the offense charged.

Sandstrom v. Montana, 442 U.S. 510, 520 , 99 S.Ct. 2450, 2457 , 61 L.Ed.2d 39 (1979) (quoting In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068, 1072 , 25 L.Ed.2d 368 (1970)). To attain a conviction under the Hobbs Act, the government must prove three elements:

United States v. De Parias, 805 F.2d 1447, 1450 (11th Cir.1986) (citation omitted), cert. denied sub nom. Ramirez v. United States, 482 U.S. 916 , 107 S.Ct. 3189 , 96 L.Ed.2d 678 (1987). Here, the government has failed to present facts necessary to prove the third element, i.e., that interstate commerce was, or would potentially be, affected by Pascucci’s extortion scheme. The Supreme Court has emphasized, “[t]he charge that interstate commerce is affected is critical since the Federal Government’s jurisdiction of this crime rests only on that interference.” Stirone v. United States, 361 U.S. 212, 218 , 80 S.Ct. 270, 274 , 4 L.Ed.2d 252 (1960).

Clearly, the Hobbs Act does not make every act of extortion a federal crime, but only those extortions where the blackmail causes an “obstruct[ion], delay[] or…