Clarence R. Sears, Jr. appeals from a judgment of conviction entered on April 5, 1976, after a jury trial in the Southern District of New York before Judge John M. Cannella. Appellant, who was charged in a two-count indictment with collecting and attempting to collect extensions of credit by extortionate means, 1 18 U.S.C. § 894, does not question the sufficiency of the evidence adduced against him. His only assertion of error is that a supplemental instruction given by Judge Cannella in response to an inquiry by the jury was erroneous and prejudicial. We do not agree and affirm the judgment of conviction.
We reach our decision to affirm not without some difficulty. Although we find no merit in appellаnt’s specific claim on appeal, we view the charges against him as a trifling example of the class of activities Congress intended to regulate through Title II of the Consumer Credit Protection Act. Appellant contends that the loan in question was one between two friends and that his threats of violence were never seriously intended as a method of obtaining repayment. There was substantial evidence to sustain this contention, and the case was a close one. Nevertheless, wе have concluded that, although somewhat trivial, it is within the reach of 18 U.S.C. § 894, Perez v.
United States,
The jury was entitled to find that in July 1975, Jаmes Johnson, a letter carrier with the postal service, asked Sears for a loan. Johnson wanted to borrow $2,000 for the down payment on a house. He had previously borrowed money from Sears and had repaid it with interest. Appellant, who was also a postal employee, loaned Johnson $2,000 in cash in early August 1975. The loan was to be repaid in three months.
In October 1975, Sears demanded repayment, but only $1,000 was paid. On November 5, 1975, he approached Johnson at the Boulevard Statiоn Post Office in the Bronx where both men worked and demanded the rest of his money. He then said, “[i]f you don’t have that money by Friday, I am coming to your house with my piece and I am gоing to blow you away.” 2 On Friday, November 7, Johnson reported Sears’ threat to the postal inspectors, who directed him to call Sears while they recorded the conversation.
*587 During the telephone conversation, Johnson told Sears how fearful the latter’s statement had made him, and Sears responded that he had meant whаt he said. In addition, the defendant stated that he could pay $50 and have Johnson “wasted”. In the end, Sears agreed to allow Johnson to repay the debt in $100 installments. The dеfendant assured Johnson that he would not give him any more trouble and that he had become angry only because of Johnson’s attempt to avoid him. On the following Monday, Sеars was arrested.
At trial, Sears offered testimony to show that the loan was made in June instead of August. According to the defense, Johnson had reneged on his promise to repay in mid-September and was avoiding Sears. Appellant admitted telling Johnson that he would come to the latter’s house with his gun. He also testified that he intended his words to have a “psychological” effect on Johnson which would induce him to repay the loan. However, Sears claimed his angry words were the result of Johnson’s refusаl to pay or even meet with him and his need for the money to help his sick wife. Sears denied that he ever owned a gun and stated that he never intended to harm Johnson. Several witnesses testified concerning appellant’s good character and his reputation for peacefulness.
After Judge Cannella charged the jury and thеre had been some deliberation, the jurors returned and asked the judge to restate the elements of the crime. Appellant raises no objection concerning the supplemental instructions then given. After further deliberations, the jury again returned to the courtroom. The jury’s note stated that the jurors were confused regarding what сonstituted extortion or a threat under the law and asked:
[Specifically, must the victim feel frightened as a result of what is said or does the fact that ... a threat was madе stand by itself?
Judge Cannella answered as follows:
In the first place, you recall the statute says that extortionate means is defined as follows: Any means which involves the use or an express or implicit threаt or use of violence or other criminal means to cause harm to the person, reputation or property of any individual. So that is what we mean by an extortionate means. Extortion as far as this statute is concerned includes any act or statement which constitutes a threat if it instills fear in the person to whom they [sic] are directed or are reasonably calculated to do so in the light of the surrounding circumstances. In answer to your specific question, must the victim feel frightened as a result of what is said? No, [it] doesn’t make any difference whether he gets frightened or not. In reference to the second part of it, does the fact that the threat was made stand by itself? Yes. In other words, you are to consider what the defendant said and what he intended the effect that would have on the other person. What he, the sаyer, the deliverant, what he intended that statement, what effect that would have on Johnson. So the fact that Johnson was or was not afraid actually as a fact is nоt relevant in this case. What is relevant is when Sears said that, what did he intend to convey to Johnson? Did he intend to put him in fear? Did he intend to use his language, to use psychological force to force him to pay this? If that is what he intended, then he violated the law.
Appellant 'concedes, as he must, that Judge Cannella’s answer to the first prоng of the jury’s question was correct. Actual fear on the part of the victim is not an element of an offense under 18 U.S.C. § 894.
United States v. Natale,
In his main charge, Judge Cannella emphasized that the jury was to consider all of the circumstances which surrounded the transaction in determining whether Sears’ statements constituted threats under the statute. The trial judge again highlighted the importance of the surrounding circumstances in his supplemental charge. It is not sufficient, however, in proving a violation of 18 U.S.C. § 894 to show that a statement, viewed objectively in light of the surrounding circumstances, would reasonably cause an ordinary person to become fearful. Fear must be the intended result of the defendant’s act.
United States v. Curcio,
Finding no error in the trial court’s supplemental charge, we must affirm the appellant’s conviction. In doing so, wе note that Judge Cannella wisély and compassionately suspended the imposition of sentence and placed appellant on probation for a period of three years.