United States v. Alan J. Valenzeno

Kеlvin Smith testified crack. Myers operation. [He also had a America, UNITED STATES of ¿oint powder in they got the

testified] [t]hat Plaintiff-Appellee, Houston, Texas, [that] and in Atlanta crack, they pooled [that] it into cooked supply money together get that their VALENZENO, Alan Defendant- J. all it is rele- And I conclude that cocaine. Appellant. vant conduct. light of Kelvin testi- at 260. In Smith’s

J.A. No. 95-4203. trial, mony court’s factual find- the district Appeals, United States Court of ings not erroneous. Additional- were Sixth Circuit. concluding by not ly, court did err appellant’s drug sufficient- transactions were Argued May ly each other. Not were connected to accomplices” Myers Smith and “common Aug. Decided offensеs, purpose,” with “common but their court, by similar as found the district were basis,

nature, repeated regular all period of

completed relatively short time. court

We thus conclude that district

properly on these other offenses relied Myers’s

computing sentence.

V. CONCLUSION reasons, foregoing we AF- on the

Based judgment

FIRM the district court.

WELLFORD, Judge, concurring. Circuit I

Although concur in the result reached majority, harbor serious doubts about I target

whether defendant grand jury the time of

investigation at

testimony, putative or even a defendant.

Nevertheless, ultimately I am able concur holding I simply here find be

majority’s of these issues to resolution unnecessary disposition

absolutely all, dispute but

this case. After there no provided ‍‌‌​‌‌​‌‌​​​​​​​​‌​‌‌​‌‌​​​‌‌‌​​‌‌​​​‌‌‌‌​​​​‌‌‌​‍to warnings the defendant

that the constitutionally regardless of adequate,

were

his status. my opinion,

In course would wiser stamping opinion our on such unnec-

to avoid is- potentially ground-breaking

essary and properly presented not

sues as are in this case. To that our court

decision opinion.

extent, join majority I do in the result, only to indi- separately

As a write part II viewed dicta.

cate that should be briefed), (argued and E. Bulford

Robert Akron, OH, Ap- Attorney, for of U.S. Office pellee. briefed), (argued

Timothy A. Smith OH, Cincinnati, Appellant. for WELLFORD, Before: MOORE COLE, Judges. Circuit WELLFORD, J., opinion of delivered the COLE, J., court, joined. in which 371-374), MOORE, (pp. J. delivered separate opinion concurring part part. dissenting in OPINION WELLFORD, Judge. Circuit Valenzeno, Defendant, acting as a Alan J. co-defendant, preparer,1 tax and his Donald acting private in- Bilbrey, as an unlicensed vestigator, engaged illegal were scheme to defraud Valenzeno’s “clients” large exchange requesting sums prob- promise for their to resolve the clients’ lems with Internal Revenue Service (“IRS”). Bilbrey were Valenzeno and charged in a thirteen-count indictment with (18 Act extortion under the Hobbs U.S.C. crime, 1681), conspiracy to commit under obtaining consumer credit information pretenses the Federal Credit Re- false under (15 1681), porting and with Act U.S.C. (26 filing false tax returns U.S.C. 7206(1)). Valenzeno, appeal whose us, was on five one bеfore convicted indictment, acquitted as to counts in the was count, and a mistrial declared as to one was chal- appeal, On this he other counts. lenges his convictions under Hobbs Act; Reporting Credit and under Federal challenge his conviction for does tax violation. income using two business insurance salesman” elaborated that Valenzeno 1. The indictment Strongville, Ohio. preparer names in "engaged in business activities Background representative bribe some unknown A. IRS. that she and her learned

Connie Sickle being by the audited IRS husband were (18 B. Hobbs Act Violations $10,000 in income. failing about 1951) § recommendation, Upon attorney’s her Sickle for his assistance with cоntacted Valenzeno Act Valenzeno claims that the Hobbs requested that she the audit. Valenzeno proscribes is the unconstitutional. The security number supply him with her social following: identifying Co-defen- and other information. obstructs, any way degree Whoever or Bilbrey, acting dant concert with Valen- delays, the or affects commerce or move- alias, “Frank,” using and an informed zeno commodity or in com- ment article $3,500 in order the needed Sickles merce, by robbery attempts or extortion or help to the Sickles out of their tax troubles. do, conspires physical or so to or commits Bilbrey and told the Sickles that any person property in fur- violence to or money “pub- the used for so-called any- or plan purpose therance of a to do apparently purposes, lic relation” thing in violation this section.... (probably illegal) euphemism payments representatives to to avoid or certain IRS 1951(a). defendant, having 18 U.S.C. prosecutions criminal prevent asserted extortion, charged been maintains against for tax evasion. After these clients is the conduct described the indictment money, pressed pro- Sickle being activity” “non-commercial with no effect on inability that amount. Va- fessed an commerce, beyond interstate and thus informa- lenzeno had cheeked Sickles’ credit authоrity citing Congress regulate, tion and that she could obtain advised Sickle 549, Lopez, v. 115 United States 514 U.S. $3,500 her through a cash advance on (1995). 1624, re- S.Ct. 131 L.Ed.2d 626 We Bilbrey account. Valenzeno and MasterCard view this issue de novo. constitutional likely told the Sickles that Mr. Sickle would problem up. go jail was not cleared agree position We with the of the promptly obtained The Sickles and the district court that paid over to Va- through MasterCard and it ‍‌‌​‌‌​‌‌​​​​​​​​‌​‌‌​‌‌​​​‌‌‌​​‌‌​​​‌‌‌‌​​​​‌‌‌​‍legislation at “directed at issue month, defendant de- lenzeno. Within against in protection of interstate commerce $3,000 deal with the same another manded jury from extortion.” United States suspi- problem, and the Sickles became 526, Green, 415, 420, 522, 350 U.S. S.Ct. (1956). сious. Supreme 100 L.Ed. 494 Court has held: attorney later contacted their The Sickles statutory language the Hobbs [of [T]he transpired. The attor- and related what persons have sweeps within it all who Act] ney prop- the information over turned ... any way degree or com ‘in authorities, investigation affect[ed] of Valen- er ’ by robbery or merce ... extortion. Bilbrey It was discovered ensued. zeno (1976 ed.). 1951(a) These words U.S.C. investigation criminal that no IRS inter to restrictive do lend themselves taking place, and that Va- was then Sickles pretation; recognized, as we have engaged in Bilbrey had been lenzeno purpose ... to use all the “manifest clients “persuading” number of Valenzeno’s Congress pun has power constitutional payments them for the substantial make with interstate commerce ish interference purposes. As was “public relation” so-called violence,” extortion, robbery brief, physical or Bilbrey he and admitted in Valenzeno’s States, 361 U.S. Stirone v. United from his unfortu- split proceeds bilked (1960).2 270, 272, 4 L.Ed.2d using 80 S.Ct. clients instead nate fear, right.” obtaining of official property or under color is "the "Extortion" another, consent, wrongful 1951(b)(2). induced with his force, violence, or or threatened use of actual nexus, 373, Culbert, 371, jurisdictional not to hold 435 U.S. substantial (1978) 1113, 1112, facially Congress. invalid an Act of See 55 L.Ed.2d 98 S.Ct. added). Bass, 92 S.Ct. at 523-24 (emphasis 404 U.S. (avoid question by holding that federalism down the re- Lopez, In the Court struck jurisdictional ambiguous statute contained el Act of 1990 cently Gun Free Zones enacted gov reversing conviction where ement pow- beyond Congress’s commerce clause prove failed to nexus with interstate ernment “nothing the Act had to with er because commerce). Compare Har United States v. any sort of economic enter- ‘commerce’ or (D.C.Cir.1997) rington, might prise, broadly one define however removing robbery’s effect of (holding that Lopez, those terms.” 514 U.S. bank from interstate transfer satisfied furthermore, Congress, at 1630-31. S.Ct. element), jurisdictional id. at Hobbs in no to interstate commerce made reference (Sentelle, J., dissenting) (arguing that 1473 stricken; express it “no the statute contained robbery had too small an effect on interstate limit jurisdictional would] element its [that satisfy commerce to constitution after Lo possessions to set firearm reach a discrete of pez); Woodruff, v. 941 United States [having] explicit with or effect an connection (N.D.Cal.1996) 910, 561, F.Supp. (granting 928 Id. at 115 on interstate commerce.” judgment acquittal charge of of Hobbs Act S.Ct. robbery had insufficient effect on Act, unlike the Gun Free Zones Hobbs attack).3 Lopez commerce withstand Act, repeatedly upheld in has its consti been Act, in Hobbs which was enacted order See, Peete, e.g., tutionality. v. United States commerce, protect a interstate is valid exer (6th Cir.1990); also 919 F.2d 1168 see United Congress’ power regulate pro cise of (7th Jarrett, Cir.1983); v. 705 F.2d 198 States tect such commerce. Accord United States (9th States, F.2d v. 314 718 Carbo United (10th Bolton, 396, Cir.1995); F.3d v. 68 399 States, Cir.1963); 122 Nick v. United F.2d Stillo, 553, 2 v. n. 57 558 Cir.1941). (8th in 660 We stated Peete: (7th Cir.1995). reject Accordingly, we Valen attempts in- regulating to affect While constitutionality zeno’s attack on the of may occasionally commerce result terstate Act. Hobbs employed being in the Hobbs Act to com- bribery pure- bat and extortion what are Valenzeno also contends that there ly contexts, the reach of Con- intrastate proof was of his acts insufficient of extortion authority to a gress’s enact such statute statute, as defined 18 U.S.C. Supreme upheld has Court. been 1951(a) (b)(2). §§ We review a sufficien transactions, though “Extortionate credit cy by determining the evidence claim intrastate, may judgment purely in the whether, viewing “after in a evidence Congress ajfect interstate commerce....” prosecution, any light most favorable Peete, (quoting 919 F.2d 1174 Perez trier of fact could have found the rational States, 154, 146, United U.S. S.Ct. beyond the crime a essential elements of (1971)). 1357, 1361,28 L.Ed.2d 686 Collins, doubt.” States v. reasonable United Congress Hobbs intended Cir.) (6th 1021, (quoting 78 F.3d Jack protection of commerce ex Act’s interstate 307, 319, Virginia, son v. 443 U.S. S.Ct. permits as as the Constitution tend far 2789, (1979)), 2781, de 61 L.Ed.2d 560 cert. States, 361 no farther. Stirone v. United — -, nied, 117 S.Ct. U.S. 4 L.Ed.2d 80 S.Ct. U.S. (1996). L.Ed.2d (1960). Lopez If indicates the Com argues power that what was involved gives Congress less than merce Clause case, other was previously thought the with the Sickles and with victims was to be bribery, crime with proper remedy give the akin to which statute more be charged, require more was not than to extortion. There interpretation, narrower or to n conviction; misconduct, commerce to sustain his argue his interstate Valenzeno does validity money the Hobbs he attacks the facial to draw caused his victims credit, insufficient effect Act. out-of-state line of feet, jobs. case, misrepresented selling Kodak In the instant dispute that Valenzeno no fraudulently created fear in his other victims that he and to the the Sickles would suffer economic or victims money he going to extracted was ‍‌‌​‌‌​‌‌​​​​​​​​‌​‌‌​‌‌​​​‌‌‌​​‌‌​​​‌‌‌‌​​​​‌‌‌​‍use personal harm if did not for his repre- unidentified IRS from them to bribe situation, help. Capo In that we find their real or feared sentatives eliminate help position. no Valenzeno’s Valenzeno, not, fact, problems. did tax he extorted4 anyone; instead bribe Nor is our recent case of Collins as upon supposed his from those who relied involved the sistance to defendant. Collins mis- expertise through fraud and service and Kentucky abusing governor husband of the representation.5 authority extorting money po by threatening to tential state contractors argument actions that his Defendant’s political if certain contri contract elsewhere bribery extortion is akin to than were more defendant, not made. The butions were the two a distinction between based on Collins, guilty contended that he Capo, crimes described in United States bribery, anything, not Hobbs Act extor Cir.1987) (2d (quoted in United 817 F.2d 947 tion, gave payors because none of the their (6th Collins, F.3d 1021 Cir. States v. rather, fear; they sought out of some 1996)). bribery Capo held that The court gain. form of economic This court disa Act, a reach of the Hobbs is not within the began premise greed. The court with the agree. Capo holding we states with which by wrongful “extortion use of fear en that bribery occurs whеn the victims that classic compasses threats of economic loss.” Col they pay, if face increased risk did “no lins, Furthermore, “[t]he F.3d at 1030. but, rather, improve their lots stood product of need not be the the defen fear by paying Id. 954. Extor defendants.” enough ‘It fear dant’s actions. the ex occurs, however, “the when defendant tion exploits intentionally ists and the defendant power the to hurt the victim purports to have ” (quoting Id. United States it.’ Id. terms and fear is induced.” in economic (6th Williams, 952 F.2d Cir. at 954. 1991) added)). (emphasis reject The court argument the and found that ed defendant’s job-selling Capo involved The case upheld Act conviction should be the Hobbs activity scheme, from the very different the feared that contractors admittedly practiced by and Valenzeno scam any potential opportu would forfeit business Nevertheless, Bilbrey. agree generally we case, Kentucky. nity In instant the element of the extortion with the discussion merely on fears were not based lost victims’ in Act violation as described of the Hobbs opportunity, but were real business teaches, example, It that “the that case. imprison potential loss or fears economic required by the Act can be of ‘fear’ element ample was evidence trial ment. There by the victim in fear of putting satisfied upon in played those fears that Valenzeno (quoting Id. at 951 frоm economic loss.” many other victims order the Sickles and (2d Brecht, 540 F.2d alleged money for his aid. their to extract Further, Cir.1976)). Capo teaches that “fear merit, therefore, perspec from the find no defendant’s loss” viewed We of economic 1951. Valen- Capo, contentions as 18 U.S.C. victim. The facts howev tive commerce, by and the er, bribery actions affected it a case of zeno’s made classic In was, addi- Act is not unconstitutional. in ef- Hobbs hiring supervisor defendant who (6th Ed.). WEB- dictionary DICTIONARY BLACK'S LAW "extort" in the We the word use INTERNATIONAL DICTIO- STER’S THIRD sense: “extort," “to definitions by any includes its compel ... means NARY coerce Extort: to or resistance; by unwilling person power serving one's or reluctаnt to overcome obtain from an methods; wrongful gain by to obtain in argument ingenuity" de- importunity, or or “to manner; something wrong- exact unlawful fully by ceive.” putting fear. or threats obtaining property an- from Extortion: why government did not We cannot discern wrongful of ... force ... use other induced charge in this case. wire fraud fear, right. of official or or under color phone supports charges about a domestic rela- tion, seek advice proof however, victims, Taylor, problem. tions never from his obtained Valenzeno Nevertheless, kept appointment. consent, Valen- by wrongfully exploiting with their zeno from Trans obtained consumer personal harm in economic their fears of Taylor, Union on and there was discovered in investigations. IRS connection with Taylor’s Taylor file a notation no Boy” the “Bad list. There was actual Reporting C. Credit Act Viola- Federal Taylor. contact between Valenzeno Va- 1681) (15 U.S.C. tions attempted lenzeno never to obtain indicated, the dis- previously defendant As him; actual there was no misuse of the covered that the Sickles a MasterCard purposes. information for fraudulent urged them to utilize the credit account single not a cites criminal account to obtain Valenzeno interpreting criminal case this section in a requested for his assistance. To obtain (15 1681). complex сivil statute At credit card information the Sickles report, the time obtained the Valenzeno clients, used other his access there is no he made partic- evidence that Union, reporting agency. a consumer Trans regarding ular pur- assertion his intended Union, As Trans a member of pose. apparently Taylor He never asked history in- consumer and other could obtain authority about run credit check on him. or his “vic- formation on his clients extortion tims,” may the case be. When Valenzeno one, in a issue is a close but situation Union, membership to applied for Trans where no harm actual economic resulted and have a need make such credit сlaimed to Taylor, effort no was made to defraud arewe obtaining consumer information checks reluctant a sufficient to conclude that show- extending potential “to clients before screen ing has been made for a criminal conviction credit.” application statutory of a little-used provision legislative history. with no clear trial, was two At Valenzeno convicted on Kennedy City Savings, See v. Border 747 obtaining credit card information counts of (6th Cir.1984). jury F.2d 367 A reasonable pretenses respect alleged under false sparse could not from the determine evidence (Count 3)6 Taylor and A.J. victims Ed W. picked Taylor whether Valenzeno had aas (Count 6).7 § 1681(q) Title 15 U.S.C. Rose potential target extortion for his scheme or specifies: expected to legiti- whether Valenzeno render knowingly willfully Any person who and Taylor mate services to on a pay- deferred on a a information consumer from obtains sum, ment basis. In what was demonstrated agency reporting under false consumer Taylor may as to have served as basis for fined pretenses shall be not more than Valenzeno, against a civil suit but we con- imprisoned not or more than one proof clude there was insufficient convict year, or both. regard pursuant in that Valenzeno of a crime government claimed that the consum- The to 15 U.S.C. willfully er obtained reports were and by target improper purposes defendant “to 2. A.J. Rose as victims the extortion

those individuals charged that Count 6 Valenzeno “ob scheme.” ... under tained consumer information false Rose, pretenses” a consumer. on A.J. The Taylor 1. Ed record, however, does not show Valen government’s actually zeno received such contention as information by person. contacted on that The most claimed Taylor that he in the charged knowingly charged knowingly 7. Count 6 that “defendant 3 "defendant Count willfully willfully obtained on a consum- and and er, on a obtained consum- information information er, Taylor, report- Rose, W. from consumer Edward reporting agency A.J. from a consumer pretenses...." agency (Empha- ing under false added.) (Emphasis pretenses_” under false added.) sis

371 prosecution, this government’s brief on this issue that de- claimed used fear to extract from them —and that generated search for fendant credit therefore Rose, the conviction must stand. See the landlord of the Sick- who was A.J. 1951(b)(2) extortion); (defining conceded that neither les. Collins, F.3d any attempt at a Rose nor Valenzeno made (6th Cir.1996); Williams, United States contact. Cir.1991) (“It (6th Simply initiating' a consumer information enough if ... [to conviction] sustain fear receiving Rose and consumer search on intentionally and the ex exists defendant subject is not information on that consumеr it.”). Culbert, ploits United States v. Cf. enough charge. under this Even if Valen- 1112, 1117, 55 L.Ed.2d U.S. S.Ct. motivation, pretenses as zeno had false (“Our (1978) statutory examination of the proof is convict on count 6. insufficient to language legislative history then, summary, In we AFFIRM the impels Act us Hobbs conclusion that conspiracy Act and the convictions for Hobbs Congress intended to make criminal all con REVERSE, We howev- reasons stated. statutory the reach of lan duct within er, Act Credit convictions. Consumer guage.”). MOORE, Judge, part concurring in Circuit concerned, however, I am this con- dissenting part. separately I write gives of the Act it a far struction broader aspects I view several of this case scope enacting Cоngress than the intended. differently my colleagues than do and be- distinguish I see little to Valenzeno’s scheme in part majority’s I from the cause dissent from one which a dishonest auto mechanic conclusion. extracts from customer fraudu- lently telling expensive him that re- without I. HOBBS ACT likely apart will fall on the pairs his car fraudulent, highway.1 Both eases are am troubled Valenzeno’s Hobbs Culbert, The evidence in case indi- but are extortionate? conviction. this Cf. (“As Represen- engaged in a 98 S.Ct. cates that Valenzeno scheme U.S. noted, robbery by convincing his victims them that tative Hobbs the words defraud put a thousand prison them for tax extortion ‘have been construed the IRS paid gov- by Everybоdy knows what they a bribe. The times the courts. evasion unless Cong.Rec. ”) ernment, however, (quoting him mean.’ 91 11912 prosecute chose to (1945)). end, “everybody” extortion, agree unlikely It not fraud. In the I seems that for agree ... that the crooked mechanic’s be- property from would “obtain[ed] that Valenzeno extortion, by wrongful ... havior and Justice ... use of actual constitutes another fear,” provi- Traynor in a similar to the one implied has this case as this court construed scheme would of the at bar that even Valenzeno’s sion: the Sickles were fear Act, (1988) (cited L. Rev. government Valenzeno un Hobbs 35 UCLA 815 1. The did not indict Evans). ig right” passim prong At least one court has der the "color official Act, prongs between the two apply to this nored the distinction which would also not Hobbs (J.A.) bribery Appendix extortion are not mutu hypothetical and held that mechanic. See Joint prong. (Indictment). ally prong, under either See United which exclusive at 14 Under that Lisinski, 887, (7th Cir.) extortion, F.2d 891-92 essentially the States v. 728 common-law codifies sup (relying right” position power provides on "color of official cases public the official’s denied, prong), showing port under fear cert. necessary conviction element and no coercive States, 832, 122, 83 L.Ed.2d 64 necessary. 469 U.S. 105 S.Ct. v. United 504 fear SeeEvans is circuit, however, 265-66, 1887-88, (1984). recog 255, 1881, long has 119 Our U.S. 112 S.Ct. merge only (1992). bribery prong, and extortion nized that 57 The "force or fear” L.Ed.2d right, ‍‌‌​‌‌​‌‌​​​​​​​​‌​‌‌​‌‌​​​‌‌‌​​‌‌​​​‌‌‌‌​​​​‌‌‌​‍hand, byis color of official where the extortion is more akin blackmail on the other not a bribe will often Wayne R. and that solicitation of extortion. See than to common-law wrongful by of fear. use constitute extortion the W. Substantive Criminal & Scott, Jr., LaFave Austin 1030; Collins, Evans, (1986). 78 F.3d U.S. at 267 n. See 8.12 504 Cf. Law 299, (6th Cir.1977). 18, (discussing Harding, See 563 F.2d 305 n. distinction S.Ct. at 1889 18 (discussing Act); Lindgren, supra, at generally 875-82 prongs Lind- of Hobbs James between two private persons application Bribery of extortion to gren, Distinction Between The Elusive law). Law to the common From the Common and Extortion: implic- this court’s unless he at least death is extortionist. Under extortion not be Williams, targets. People v. binding precedent his itly threаtened See in Collins and Camodeca, 142, 903, however, P.2d 906- Cal.2d I must agree that the conviction (1959). Williams, 952 F.2d at Contra stand. And, really had been if Valenzeno offi- “helping” bribing an IRS the Sickles FAIR II. REPORTING ACT CREDIT really or if the car prosecution, cial to halt a (but also of two counts dangerous repairs and needed Valenzeno was convicted were proposed), violating 1681q, pro- cheaper than the mechanic ones U.S.C. Again, knowingly “[a]ny person would their misconduct extortion? that who vides wrongful2 the involve use of willfully both situations information a consumer obtains money,3 and would therefore fear obtain reporting agency under from consumer statutory within definition. fall the impris- pretenses fаlse be fined ... or shall Cf. The Distinction Lindgren, Elusive James 1681q. agree I the oned.” 15 the Bribery and Extortion: From Between majority that there was no evidence that Act, Hobbs L. 35 UCLA Common Law actually managed Valenzeno to obtain (1988) (noting seventeenth- Rev. his information and that about A.J. Rose private century persons in which were eases must I conviction Six be vacated. Count prosecuted charging extortion exces- cannot, however, agree that the fees). writing sive on a blank slate I Were present proof failed to sufficient that Valen- implications holding explore that report Taylor obtaining zeno’s a credit on Ed requires of fear” that the extortion “use § 1681q. majority violated seems take victim fear the extortionist will that (1) holding that base its on determinations forthcoming, payment is some action if there is insufficient evidence that Valenzeno that not extortion if the victim it is reports legitimate for other wanted than merely person requesting believes (2) purposes, never the credit told pay- payment acting if no will refrain why Taylor’s agency report, and he wanted Capo, ment is United States v. made. Cf. (3) Taylor having suffered no harm from banc) (2d Cir.1987) (en report facts of credit revealed. Under the (holding “[w]ithout evidence ease, this of these first determinations negative payor intervention for feared some wrong are and the other two irrelevant. payment solely non-payment, the intended notes, shows, majority As evidence result,” to secure an otherwise unsecured jury found, apparently bribery extor- and the crime is rather than obtained a credit on Connie and Ber- tion); Fletcher, George P. Blackmail: nie to determine whether Sickle order Crime, Paradigmatic 141 U.Pa.L.Rev. they had a line of access to credit (1993) (discussing possibility of dis- use to could obtain Valenzeno. legal illegal tinguishing offers and between (Connie Testimony) J.A. at Sickle See threats on of relation to “baseline of basis (Valenzeno card normalcy,” con- told her to use their credit departures which could (Sickle blackmail). $3,500.); get at 335-48 Credit every Not snake-oil sales- to J.A. stitute residence).4 Reports preys man on our fears of sickness and seized from Valenzeno who acting, “wrongful” manding payment prerequisite of "limits the to Act's use as The Hobbs duty coverage to to those where the even where there is no act? A similar statute’s obtaining instances ‘wrong legal property paradox in it is would itself be the law of blackmail—that alleged embarrassing people and has no lawful to reveal secrets about ful’ because the extortionist money, property.” them but not reveal claim to En to ask for to threaten that mons, 1007, 1010, money paid generated S.Ct. the secrets unless U.S. —has Thus, (1973). genеrally Symposi- fear extensive See L.Ed.2d where one uses an literature. um, Blackmail, (1993). money to obtain to which one has no lawful 141 U.Pa.L.Rev.1565 claim, wrongful. the of fear is use prosecution presented evi- 4.The also extensive afield, suggesting what dence that Valenzeno had committed 3. Even of a situation in farther Ghadimi, person against at 115 help to out of a similar Fred J.A. which refuses another frauds $4,000 (Valenzeno large requested to offi- payment? Does a bribe IRS bad situation without a (Valen- cials); good Kimberly Meyer, J.A. de- at 157-59 become an extortionist Samaritan to theory support as to sufficient the inference Va- government’s Count Three Taylor’s purposes obtаining reports was that obtained credit lenzeno’s credit exactly Taylor’s reason: to deter- report the same were the same both cases.5 Both had access to Taylor mine sufficient reports whether the the Sickles’ credit had credit payments in a funds to make substantial balances highlighted. limit See J.A. 146- of similar The evidence this includ- scheme. “opening] 298. The to reference Pando- report on copy Taylor ed a a credit needing “get box” and started in a ra’s “Ed Taylor” in a file—labeled found hurry” suggest intended that Valenzeno —in home, testimony as to the Valenzeno’s perpetrate Taylor the fraud on same 65-70; See J.A. at details of seizure. legitimatе the Sickles the others: (Credit Report). J.A. at Several 298-300 preparation usually involve a services do not circled, report were in- items on the credit opportunity and thou- 48-hour window cluding Taylor’s limit on a card. credit credit prepayment, in cash but sands dollars The file also what See J.A. at 298. contained Finally, if other frauds did. Va- Valenzeno’s fairly the characterizes as report lenzeno obtained credit talking Taylor, script to be used while with credit order to determine whether to offer phone Taylor’s number and lists Taylor, why seeing it is after hard to see states, alia, good looks can “[i]t inter completely then report normal he would have keeр you man. All I is the a free need $2,500 prepa- beginning tax demanded before $2,500 get and I’ll started. Since we’ve fee That ration work. at 276. See J.A. get we need to start- opened box [P]andora’s evidence was circumstantial does not mean hurry. ed in a to me in 48 Get support jury’s it that was insufficient hrs.” at 297. Accord at 298 See J.A. J.A. Taylor’s inference that Valenzeno obtained number). Taylor’s phone gov- A (regarding improper purposes. credit testified that ernment witness another docu- statute, course, prohibits obtaining Al, “[h]i, read, I’ve ment this is told the folks pretenses, consumer information under false your with would be there POA obtaining purpose.6 improper it for an people I don’t want these madder 48 hours. And, undisputed that Valen- evidence is already. got than are So I’ve to ... request give any did not for his zeno reasons immediately.” J.A. Be- have the fee at 66. Taylor’s the time credit re- he obtained keep appointment cause Taylor failed to case, however, port. Under of this the facts Valenzeno, no him with he had contact with persuaded I am nonetheless that Valenzeno single phone other call from Valen- than violated the statute. 280, 277. zeno. J.A. at See opened When Valenzeno account why as to Although the evidence reporting agency he stated in his the credit Taylor information the credit obtained reports be- application that needed relating as the evidence was not as direct he had on account uncre- report, it was cause lost credit nonetheless Sickles’ $2,000 hours); juror no have returned a payment rational could requested within 48 zeno Nusbaum, (Valenzeno guilty David J.A. at verdict based on this evidence. United $1,400 (6th requested go Collins, "speak total of Cir. States get people 1996). IRS] [Nusbaum] [an involved to off resolved); audit,” problem was never but tax 181-82, (Valenzeno Reyes, J.A. at Richard A to the Act which to take recent amendment told he needed IRS officials him civil, September impose will on effect Wells, Raymond stop investigation); J.A. at and criminal, liability who persons know- but not on (Valenzeno requested to friend at improper pur- ingly obtain information IRS). of Valenzeno’s uncov- The search house Appropriations pose. See Omnibus Consolidated people, these several of which ered folders 2412(c), 1997, § [ofi Act Pub.L. reports Reyes “scripts," credit contained 3009^-46, (1996) (amending 15 U.S.C. Stat. 59-60, 64, 80, 82, J.A. at 87. wife. See his 1681n(b) "[a]ny person provide § who ever actu- There no indication Valenzeno is a report a consumer re- obtains from consumer ally paid bribes. knowing- agency pretenses porting or under false permissible purpose ly a shall liable sufficiency without challenges the 5. Because evidence, agency.”). reporting to the consumer overturn of the we can his conviction a to insure that consumer past need ditworthy “[t]here in the and wanted clients agencies grave their re- reporting exercise future.7 in the See J.A. avoid such losses respect ... con- sponsibilities with a for the agency that he By telling the credit 151. privacy.”); right sumer’s Trans Union making requests for a cer- future would be Comm’n, 228, 81 F.3d Corp. v. Federal Trade implied that purpose, tain (D.C.Cir.1996) (“[A] major purpose of the specified 284 request would be for the any future privacy of a credit- Act is the consumer’s regard, Professors LaFave in this purpose; data.”). uphold the convic- statutory related crime discussion and Scott’s Thrеe, respectfully and I persuasive: tion under Count is relevant and pretenses of false contrary majority’s conclu- dissent from the pretenses for false misrepresentation A sion. con- generally requires some affirmative ... doubt affirmative statements duct. No impressions which reinforce false create, or affirmative

the defendant did e.g., the suppressing

conduct truth — actually hides information and defendant learning prevents the victim

so silence, do as well. Mere how- truth —will MORGANROTH, a & MORGANROTH suffice, ever, generally not even will Morganroth, Mayer Michigan partnership, and though one realizes that the silent oss-App iffs-Appellees/Cr Plaint acting impres- a mistaken under other ellants, special circumstanсes there sion. Under nevertheless, duty speak may, (thus making misapprehension correct a Z. and Ecclesiastes 9:10- John DeLOREAN liability) where the the basis (for silence 11-12, Inc., Corporation a Delaware —as has, though innocently, even merly Logan Manufacturing), known defendant severally, misapprehension previously created jointly Corporation, Delaware something he said or did.... dants-Appellants/Cr oss-A Defen ppellees. Wayne Soott, Jr., R. LaFave & Austin W. 8.7(b)(3) (1986) § Law Criminal Substantive 95-1563, Nos. 95-1620. (citations omitted). added) Valen- (emphasis Appeals, United States Court of dealings agency the credit prior zeno’s Sixth Circuit. request impression that he would created the purposes; оbtain- reports only for certain Argued 1996. ‍‌‌​‌‌​‌‌​​​​​​​​‌​‌‌​‌‌​​​‌‌‌​​‌‌​​​‌‌‌‌​​​​‌‌‌​‍Oct. other, report illicit ing Taylor’s credit Aug. Decided disclosing them constituted reasons without report pretenses. under false obtaining the Denying Rehearing Oct. Order prohibits: precisely what the statute This is purpose pro- is to part of the Act’s privacy, 1681q does not re- tect consumer

quire suffer economic harm or that the victim of fraud. 15 U.S.C.

be the victim Cf. 1681(a)(4) (congressional finding sought, certify Reporting requires that the information mation is 7. The Fair Credit Every purpose. agencies for no other con- reporting such informa- will be used obtain credit agency reporting make a reasonable shall prospective customers. See 15 U.S.C. sumer tion from verify identity prospective agency a new ("Every reporting effort to consumer 1681e prospective procedures designed and the uses certified such user maintain reasonable shall furnishing prior such user consumer 1681c of this title user avoid violations of section agency may reporting fur- furnishing reports report. consumer consumer No limit the and to any person it has purposes under section 1681b of this nish consumer listed believing grounds require pro- con- procedures shall reasonable title. These purpose listed identify will not be used for a spective selves, them- sumer users of the information title.”). of this infor- in section 1681b certify purposes for which the

Case Details

Case Name: United States v. Alan J. Valenzeno

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 13, 1997

Citation: 123 F.3d 365

Docket Number: 95-4203

Court Abbreviation: 6th Cir.