United States v. Eugene Temkin
2015 U.S. App. LEXIS 14194
| 9th Cir. | 2015Background
- Temkin financed a failed gambling venture and, after losing money and property, began harassing and threatening his former partner Michael Hershman to extort additional funds, escalating to stalking, theft, hacking, and brandishing a gun.
- Temkin attempted to recruit others to kill or extort Hershman (first Morrison, then Malpezzi), and Malpezzi recorded conversations and alerted law enforcement.
- After an initial undercover "burn" warning by law enforcement, an FBI undercover agent posing as a hitman (“Pavel”) met with Temkin in July 2010; Temkin provided victim IDs, bank account details, an address, gave $3,000, and discussed taking Hershman out to sea (i.e., killing him) and extorting $15 million.
- Temkin was arrested July 14, 2010, and a bench trial convicted him of: (1) solicitation to commit a crime of violence (18 U.S.C. § 373), (2) attempted extortion affecting commerce (Hobbs Act, 18 U.S.C. § 1951(a)), and (3) use of interstate commerce facilities in the commission of murder-for-hire (18 U.S.C. § 1958(a)).
- The Ninth Circuit affirmed the convictions (sufficiency of the evidence and rejection of entrapment) but found procedural sentencing error: the district court used U.S.S.G. § 2E1.4(a)(1) (base offense level 32) rather than cross-referencing to U.S.S.G. § 2A1.5 (base 33 +4 for payment = 37). The case was remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for solicitation (18 U.S.C. § 373) | Government: July 8 meeting and actions show Temkin intended Pavel to kill Hershman. | Temkin: created a condition precedent he knew would not occur and later abandoned plan. | Affirmed—evidence supports intent; voicemail delay was precaution, not voluntary renunciation. |
| Sufficiency of evidence for Hobbs Act attempt (18 U.S.C. § 1951(a)) | Government: Temkin took substantial steps (meeting, info, $3,000), and acts would have de minimis impact on interstate commerce. | Temkin: plan based on Malpezzi’s fabrications and abandonment. | Affirmed—substantial step shown; factual impossibility not a defense; interstate commerce requirement met. |
| Sufficiency of evidence for 1958 murder-for-hire (use of interstate commerce) | Government: July 7 phone call and July 8 meeting used interstate facilities with intent to commit murder. | Temkin: lacked requisite intent/use. | Affirmed—telephone use with intent shown. |
| Entrapment | Government: Temkin was predisposed (prior behavior, prior solicitations, led planning). | Temkin: induced by undercover agents. | Affirmed—court found predisposition; government met burden to prove no entrapment. |
| Sentencing Guidelines calculation | Government (on cross-appeal) and Probation: base level should reflect solicitation/murder conduct. | Temkin (and district court originally): applied §2E1.4 base level 32. | Reversed as to sentencing—district court erred; correct cross-reference yields offense level 37 (§2A1.5 +4), vacate sentence and remand for resentencing. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency of evidence review)
- United States v. Magallon-Jimenez, 219 F.3d 1109 (9th Cir.) (bench-trial fact review)
- United States v. Jones, 231 F.3d 508 (9th Cir. 2000) (factors for predisposition in entrapment)
- United States v. Mejia, 559 F.3d 1113 (9th Cir. 2009) (government burden when entrapment asserted)
- United States v. Lynch, 437 F.3d 902 (9th Cir.) (de minimis interstate commerce effect sufficient under Hobbs Act)
- United States v. Scott, 767 F.2d 1308 (9th Cir.) (substantial-step guidance for attempt)
- United States v. Vasco, 564 F.3d 12 (1st Cir. 2009) (applying §2E1.4 cross-reference to §2A1.5 for murder-for-hire sentencing)
- United States v. Dotson, 570 F.3d 1067 (8th Cir. 2009) (same conclusion on §2E1.4 cross-reference)