United States v. David Peter Marsh

26 F.3d 1496 39 Fed. R. Evid. Serv. 972 UNITED STATES of America, Plaintiff-Appellee, v. David Peter MARSH, Defendant-Appellant. No. 92-10504. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 3, 1993. Decided June 27, 1994. Diane Marie Amann, San Francisco, CA, for defendant-appellant. Rory K. Little, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before: CANBY and NOONAN, Circuit Judges, HUFF * , District Judge. Opinion by Judge CANBY; Concurrence and Dissent by Judge NOONAN. CANBY, Circuit Judge: 1 Following a jury trial, David Peter Marsh was convicted on one count of extortion or attempted extortion and sentenced to five years in prison. Marsh now appeals his conviction, contending that the evidence was insufficient to support the conviction for extortion by threat of economic harm and that the district court erred in instructing the jury and in preventing him from introducing expert testimony regarding the complaining witness's "dependent personality disorder." Marsh also appeals his sentence, arguing that the district court erred in departing upward…

Opinion by Judge CANBY; Concurrence and Dissent by Judge NOONAN.

Following a jury trial, David Peter Marsh was convicted on one count of extortion or attempted extortion and sentenced to five years in prison. Marsh now appeals his conviction, contending that the evidence was insufficient to support the conviction for extortion by threat of economic harm and that the district court erred in instructing the jury and in preventing him from introducing expert testimony regarding the complaining witness’s “dependent personality disorder.” Marsh also appeals his sentence, arguing that the district court erred in departing upward from the guidelines.

We affirm Marsh’s conviction. We vacate the sentence, however, and remand for re-sentencing.

BACKGROUND

Marsh was indicted for attempting to extort and for extorting money from a San Francisco businessman, whose privacy we will protect by referring to him only as “Doe.” The extortionate threats were alleged to have been made in the course of a series of telephone calls made by Marsh to Doe, and recorded on Doe’s answering machine. The indictment contained three counts: Count I, alleging threats of economic harm in telephone calls made on…

concurring and dissenting:

“The defendant before you is an innocent man.” That claim, rarely heard in a court of appeals and still more rarely sustained, compels the attention of the judge. All our provisions for appeal, our careful scrutiny of the record, our hearing of argument, our conferencing and analysis are designed to prevent just such a perversion of the criminal process as the infliction of punishment upon an innocent person. It is not our way to imprison a defendant because we do not like him or find his conduct worthy of disapproval. If he is to be stamped a felon by federal law, he must have committed a federal crime. If he has not, he is innocent. Such Marsh contends he is. Such Marsh should be found to be.

Marsh was charged with three crimes, of two of which he was acquitted by the jury: extortion and attempted extortion on October 7,1991 by threatening to kill Doe, and extortion and attempted extortion on October 9, 1991 by threatening to kill Doe. He was convicted of extortion and attempted extortion on September 4, 1991 by “wrongfully threatened fear of economic loss” to Doe. This court now finds the evidence insufficient to convict him of extortion on…