United States v. David Peter Marsh

1496 еntering (See, practice as the basis for e.g., rules of use a counter-offer

and constitute 742, independently summary judgment without Landberg, Cal.App.3d 24 Landberg v. (1972)) sufficiency moving pa- evaluating 750, 101 or whether the Cal.Rptr. 335 Inc., Industries, Henry 983 unequivocal acceptance pers. with v. Gill is an letter Cir.1993). (9th perfectly terms which This case for different F.2d 943 expressed desire (see, e.g., Chicago Bridge prudence & a rule. parties of such binds the demonstrates Comm’n, 226 independent Accident evalu- Iron Co. v. Indus. of the trial court’s Bereft Cal.Rptr. n. 57 Cal.App.2d summary judgment ation of the merits of (1964)). argue that these The Cristobals is left to decide the issues appellate panel terms, are material bickering added terms only meager record and conditionality of the lan materiality, not the panel have asked this briefs. The Cristobals are govern whether terms guage, entry should sufficiency of the of to address the Tay Bartone v. treated as a cоunter-offer. by doing have summary judgment, and so Co., Cal.App.2d lor-Benson-Jones precedent panel this to create invited (1953). 258 P.2d 1054 regarding agency, profes- the law Guam evidence, responsibility, and contracts sional issues, i.e., the existence of Teker’s These any guidance from the local courts without suit, authority to settle the and the enforce- this regarding application of Guam law to agree- ability purported settlement right Although recognize our set of facts. law, interpreta- a matter of turn on ment as binding precedent, we decline the to establish agency, tion of the Guam’s substantive law to do so. invitation evidence, responsibility, and con- professional recognize courts tracts. We the local Guam TV. CONCLUSION many uniquely qualified to resolve the statutory and common law issues raised hereby the order affirm- We REVERSE appeal. Superior the Cristobals Because the entry summary ing Superior Court’s to have con- Court deemed the Cristobals judgment and REMAND to District Court of summary judgment sented to the motion Appellate Division with instructions to Guam we review a on the basis its Rules Court Superior REMAND to the Court of Guam leaves us bereft of the trial record which independent for its determination of Coral on these issues. court’s wisdom summary judgment. Pit’s entitlement to above, As noted we review these issues de Nonetheless, power our to decide the

novo. tempered by our concerns

law in this case is comity. Yang, v. Guam (en banc) (9th Cir.1988) we noted required “Congress specifically has that rela America, UNITED STATES of courts and Guam’s tions between the federal Plaintiff-Appellee, local courts be the same as those between Although courts.” this the federal and state functionally is not accurate because of this MARSH, David Peter Defendant- appellate authority over court’s direct Appellant. courts, comity local the concern for Guam’s No. 92-10504. court, by Congress, exрressed that this court need not address teaches us Appeals, States Court of United Cf., peculiarly some local concern. issues Ninth Circuit. Inc., International, Hueng Lynn v. Chin (9th Cir.1988) (Ninth gloss Circuit F.2d Argued and Nov. 1993. Submitted importance peculiarly in a matter of local Decided June binding on Guam broad discretion Courts). deepest concern in this case is

This court’s within this circuit do not

to see courts Amann, Francisco, CA, San

Diane Marie defendant-appellant. Little, Rory Atty., Fran- K. Asst. U.S. cisco, CA, plaintiff-appellee. NOONAN, history of the rela- also relate the Circuit well. We Before: CANBY ‍‌‌​‌‌‌‌​‌​​‌​​‌‌​​‌​‌‌​​‌‌‌​​​​​‌‌​‌‌​​​​​‌‌‌​‌‌‍tionship Marsh and Doe. between *, Judge. District Judges, HUFF met more than 25 Marsh and Doe first CANBY; Judge Opinion by Concurrence responded years ago when Doe to Marsh’s by Judge NOONAN. and Dissent newspaper for male models. advertisement thereafter, occasion Doe On more than one CANBY, Judge: Circuit in engaged relationship in a sexual which he Eventually, prostitution. paid Marsh for trial, Following jury David Peter Marsh Doe, in friendship developed. whо lived San convicted on one count of extortion was Marsh, Francisco, Angeles, in Los saw and attempted extortion and sentenced to five year. or four Al- each other three times appeals con- prison. in Marsh now his sexual, though relationship remained viction, in- contending that evidence was longer required payment for sex. Marsh no for extor- the conviction sufficient money and Doe Marsh often asked Doe for that the by threat of economic harm and tion “glad help him out.” Doe’s financial jury instructing in district court erred grew and support of Marsh to be substantial preventing introducing him ex- and in from financially eventually depen- Marsh became testimony regarding complaining pert time, him. For a short Doe em- dent on “dependent personality disorder.” witness’s However, in ployed Marsh his business. Doe sentence, arguing appeals also his Marsh kept relationship his Marsh a secret. with depаrting in that the district court erred guidelines. upward from the selling operated a business a line of Doe specialty items out of his residence affirm Marsh’s conviction. We vacate We primary ho- Francisco. His customers were sentence, however, and remand re- tels, including the Fairmont and the St. sentencing. spring Francis. In the Doe’s sales accept began to decline and he was forced to BACKGROUND job part-time organization, with a fraternal Rite, supplement his income. the Scottish attempting Marsh was indicted for to ex- later, allegedly He was fired a short time extorting money tort and for from a San because of Marsh’s numerous calls to the businessman, privacy whose Francisco organization’s office. protect by referring to him will $20,- During Doe had borrowed over “Doe.” The extortionate threats were al- family, apparently 000 from his to continue to leged to have been made the course оf a provide money September to Marsh. On telephone series of calls made Marsh to 1991, Doe, man, elderly now an Doe, answering ma- and recorded on Doe’s hospitalized days. for 10 suicide chine. The indictment contained three attempt, family After the suicide members I, alleging counts: Count threats economic why discovered Doe cut his wrists. Said September harm in calls made on Doe, Eventually, money.” “I was all out of 4, 1991; II, alleging threats to kill in Count family concerned members learned about his 7, 1991; III, calls of October and Count Suspecting Marsh. alleging kill in threats to calls of October Doe, they criminally blackmailing I, 1991. The convicted Marsh on Count contacted the F.B.I. acquitted but him on II and III. Counts appeal consequently This focuses on the calls proceedings began, criminal the two When meaning 1991. Because the had not one another for about four men seen disputed, However, years. they those calls is had maintained a con- interpret meaning relationship by telephone. Typically, was entitled to stant evidence, light requested calls in of all the we set Doe collect and those Marsh called pay phones him excerpts forth of several of the other calls as to call back at one of several * Huff, fomia, Marilyn sitting by designation. The Honorable L. Judge District for the Southern District of Cali- 7, 1991, During ensuing eight On October Marsh left mes- Angeles area. the Los first, sages conversations, usually requested Doe on Doe’s machine. at a.m., approximately 1:00 money via Union. The asked Western to wire caring and said Doe was “the most payments of Doe’s pattern $100 my single day person and kindest I’ve ever met in On a peculiar and erratic. again life.” Marsh called back several hours example, April Doe sent saying later had not arrived separate payments via Western Union nine out,” appаr- and that he was “chewed ranging from When $35 in amounts $145. ently by having decline, for not the rent ability began to landlord pay angry Marsh’s tone was and he phone calls frequency of Marsh’s tenor calling every threatened to continue few min- messages Marsh left began change. later, utes or even seconds. Ten minutes answering machine became violent on Doe’s again, threatening Marsh called course threatening. and clog up terms to Doe’s line. In the family members contacted After later, message, next hour-and-a-half F.B.I., agents instructed Doe to save federal epithets at Marsh hurled numerous Doe and telephone messages that Marsh had been by saying get ready concluded “Just answering machine. Marsh leaving on Doe’s die,_ going ya.” I’m to kill Minutes messages on left the first of the recorded later, again ‘You Marsh called and said don’t 4, 1991, the date on which this I’m deserve to live. comin to San Francisco. message, Marsh appeal focuses. In the first get up you’re gonna IWhen there die.” And said, have a hundred dollars down “Please so on. my way I’ll ... in 15 minutes. Or be here An hour later Marsh called and resorted Francisco.” A few minutes later he to San money. again pleading for the Minutes again: called again yet begging he called back and later Yeah, just you might in the I found out be message pleading for In the final Well, fine, country for the week. that’s later, hours Marsh insulted five-and-a-half your place. I’ll into break [victim’s name]. religion. Doe’s mother and his He also I’ll, But, uh, worry that. so don’t about claimed that he had knife with which he all, I’ll, way I’ll find a in. Now second planned stab a at a real estate woman um, calling appar- Thurman [an I’ll be agency. Fairmont, mistranscription of one of ent for These October 7 calls formed basis and, uh, Hotel ... St. customers] Doe’s indictment, which II of the Marsh Count Francis, (unintelligi- and I’ll find a location alleged acquitted. II extortion Count me, ble), um, you help at a if don’t want attempted through the use of extortion fucking you put ... me in this time that fear, force, or as distin- threatened violence you’ve put in this miserable moth- spot, me alleged in guished the economic threat from erfucking gonna I’m ... spot, Mister. So essentially mirrored III Count I. Count you spot back.... I’ve put the same II, supported by except that it was Count (unintelli- just got calling the done Scottish 9,1991. messages Marsh left on October four Uh, leaving message. gible) and Steve going I’m (unintelligible) ... Marsh and messages, In the first of these October I’m Thurman Hotel. And then call the desperate that he was Marsh said (unintelligible) gon- and I’m gonna call ... away. If right him and told Doe to call back message]. call Ev ... [end na comply, threatened: Doe did not Marsh up right might Triple “I call the A now. message, apologized but In third Hotel, Fairmont gonna I’m call the again to send the he had asked Doe call, I’m Hospital. gonna I’m three calls formed Shrinеr’s requested earlier. These every single mother fucker gonna I call conviction on Count the basis Marsh’s every person you do business indictment, attempted I know and extortion you every account that I will call by wrongfully threatening economic with. § have.” in violation of 18 U.S.C. loss returned, jury. When the suppliers. In the reinstruet one of Doe’s

Triple was later, II and III acquitted Counts minutes message, three next life) (threats and convicted on Count his mother a liar. piga called Doe I, stated, alleged of economic harm on going “I’m which threats message, Marsh another you my September 4. going to kill you.... kill I’m Francis- I’m cornin’to own bare hands. sentencing, At the district calculated expletives and addition- then added co.” He conviction at 11. the base offense Marsh’s message, MU: In the final al threats to Citing adequately factors not con- numerous being threatened with a he was Marsh said Guidelines, Sentencing sidered in the Doe to call. implored knife and departed sharply upward, impos- judge then and indicted on Marsh was soon arrested years. ing a total sentence of five counts of extortion the three appeals conviction and Marsh now both the Shortly way, trial under after extortion. the sentence. seeking permission the defense filed motion inspect psychiatric records and to DISCUSSION psychiatric examina- force Doe to submit to argued that this evidence would tion. Marsh Sufficiency of the evidence. I. gave that Doe his defense A. of review. threats, Standard money not because of the but be- motive; independent Marsh al- cause of an sufficiency the of the evidence We review “dependent personality leged that Doe had a under the Jackson standard. “The relevant give that caused him to Marsh the disorder” whether, question viewing is after the evi- motion money. The district court denied the light dence the most favorable to the it foundation. lacked prosecution, any rational trier of fact could Later, proffered expert the defense testi- the essential elements of have found the mony regarding psychiatric Doe’s condition. beyond crime a reasonable doubt.” Jackson observing expert, 307, 319, 2781, who had been Virginia, v. 443 U.S. 99 S.Ct. (1979). testimony during 2789, trial and had read the trial 61 L.Ed.2d 560 testify transcripts, prepared to that Doe The elements of economic extortion might possess dependent personality disor- (1) (2) are a threat of economic harm that is der. The district court denied this motion as purpose obtaining made the well. (3) puts from the victim that the victim trial, government At the end of the the fear of harm. reasonable economic United jury from submitted instructions drawn the (9th 1275, Greger, v. 716 F.2d States jury manual and a Ninth Circuit instruction denied, 1007, Cir.1983), cert. 465 U.S. requested standard treatise. The defense (1984). 1002, 79 L.Ed.2d 234 S.Ct. jury clarify to additional instruction argues first that the evidеnce is insufficient government prove must that Doe feared support a to conviction for extortion under loss, simply “economic a fear of loss of I the failed to Count because evidence estab reputation.” The district court refused possessed lish that Doe a reasonable fear of However, give modified instruction. agree economic harm. We that the evidence objection defense made no to the instructions insufficient to fear establish reasonable given. deliberating ap- that were After September of economic harm based on the hours, proximately jury sought three ad- messages; although freely Doe testified to guidance “harm” ditional on whether the re- life, simply fear for his he was not asked might II III in- quired under Counts whether he feared economic harm. Never exposure According to clude or defamation. theless, alleged attempted I Count also еxtor defense, jury’s uncertainty indicated tion, jury was instructed on its ele misunderstanding be- distinction ments. exposure” tween “fear of and “fear of eco- applied requires An extortion conviction evi nomic loss” as those terms Count court, however, possessed dence that Doe a reasonable fear I. The district refused extortion, ing attempted attempted that he to instill a ‍‌‌​‌‌‌‌​‌​​‌​​‌‌​​‌​‌‌​​‌‌‌​​​​​‌‌​‌‌​​​​​‌‌‌​‌‌‍fear of harm. For of economic loss; hand, jury easily “the victim’s state of mind could draw economic on the other important is that important. many What is is not from Marsh’s communications that he in the attempted to instill fear the defendant might say cannon and almost loose Ward, F.2d v. victim.” United States anything damaging Although Doe. Cir.1990). (9th Consequently, we so, jury, might if chosen to it had do reason- attempted affirm Marsh’s conviction must ably that have inferred that a if the facts are sufficient embarrassment, jury instill a fear had the jury could find that Marsh rational equally entitled to infer as did took a money and he intent to extort a fear of economic Marsh intended instill step accomplish this end. See substantial harm, especially light of Marsh’s threat to Runco, v. 873 F.2d States United put spot This fear the “same back.” (9th Cir.1989). all, been reasonable. After would have customers, targeted Doe’s not his statements, threatening interpreting In friends. juries, espe- give considerable deference ambiguous. cially speaker’s if words are jury was entitled also to consider Pascucci, statements to determine the Marsh’s October (9th Cir.1991) 1036-37, (“Especially n. 3 meaning September 4 conversation. a threat ambiguous, the existence of

when scatological of a in one the midst diatribe circumstances, which the depends on the said, messages “I on October Marsh meaning considering the interprets”). When might Triple up right going I’m call now. September of Marsh’s words Hotel, to call the Fairmont the Shriner’s into account all of the to take was entitled every single Hospital. gonna I’m call mother properly evidence admitted. every person fucker that I know and left a mes On every I you do business with. mil call sage, telling Doe to “have a hundred dollars you account that have.” These statements I’ll ... on down here in 15 Or be minutes. certainly sound like an economic threat. The later, my way to Francisco.” Minutes jury rationally could have determined things), again, saying (among other he called statements in re- Marsh’s similar apparent calling “I’ll the Thurman [an be to instill of economic flected an intent fear Fairmont, one of R’s cus mistranscription of harm Doe. uh, and, ... ... Francis Hotel St. tomers] only benign interpretations of Marsh’s fucking spot, you’ve put you put me in this in- are that he somehow did not statements motherfucking spot, inme this miserable meaning or that tend the natural of his words gonna put you I’m ... in the Mister. So attempt when he he somehow abandonеd his back_ just got call- spot I’ve done same threatening calls with followed some leaving (unintelligible) and ing the Scottish long apologetic relationship ones. message.” supported could have an inference interpretation of these state- A reasonable not in- that Marsh’s economic threats were threatening that Marsh was eco- ments is seriously, jury taken but the tended to be he said he would call Doe’s nomic harm when jury inference. The to make that refused scarcely employer. It can and his customers interpret the circumstances was entitled purpose of the calls was be doubted that the meaning words and the of Marsh’s and state- from Doe. Marsh’s to obtain to- abusive the became whether facing a diffi- demonstrate that he was ments voluntary although aban- the And ward end. threatened to cult situation. He economic defense to an extortion donment is a valid A rational put spot in the “same back.” present such a de- attempt, Marsh failed to instill a jury inferred intent could have jury. the fense to harm from these words. fear of economic ample providing evidence In addition specify what fact that Marsh did not intent, unequivo- phone calls are the say customers Marsh’s to Doe’s business he would steps in furtherance of necessarily against a find- cal and substantial militate does not However, jury out attempt. Undisputed etc.” had stricken evidence the extortion Marsh, According jury’s conclusion that supports the Marsh words “economic loss.” jury through attempted to obtain from Doe the fact that struck jury instilling proves “economic” fear him. that the words “economic loss” equated exposure [appar- economic loss with Jury II. instruction. ently homosexuality or of Doe’s homosexual note, response In to the encounters]. evaluating challenge jury in In brought jury district court back tо the structions, we must determine whether “the questioned courtroom and the members jury misleading instructions as a whole are jury about the note. The asked the guide jury’s inadequate or delibera jury foreperson whether the was concerned Joetzki, v. 952 F.2d tions.” United States (9th Cir.1991). jury foreperson I. about Count assured Although a dis jury judge was concerned with trict court has substantial latitude to tailor instructions, only. II III fairly Counts Satisfied that the jury the instructions must pertained II III adequately embody questions to Counts the relevant law re only, garding presented. the district court refused to reinstruct the issues Powell, (9th Cir.1991). jury regarding 955 F.2d Count I. view of the district court’s efforts to insure that the sought supplement I, regarding was not confused Count Marsh instruction on court’s “extortion-fear of eco jury’s ques- has failed to convince us that the clarifying nomic loss” with a statement regarding tions II and III Counts had loss, “the fear must be a fear of economic bearing understanding proof on their simply reputаtion.” Al fear of loss of Any instructing on Count I. errors though give the district court refused to II III Counts are harmless because Marsh instruction, amended the defendant failed to acquitted counts. those object given. to the instructions as trial, At the defense that Doe maintained Expert psychiatric testimony.1 III. theorized, feared for It never his livelihood. rather, exposure. In in- Doe feared We review for abuse of discretion the dis structing jury, the district court clarified expert trict court’s refusal to allow an guilty that Marsh would not be of extortion testify regarding psychiatric a witness’s con wrongful unless the found a threat of Rahm, dition. United States v. Although economic harm. the court did not (9th Cir.1993). 1405, 1409-10 give an distinguishing instruction fear of eco- proffered testimony The defense the of an reputation, nomic from loss fear of loss of the expert witness to establish that Doe had a gave instruction it not was inconsistent with “dependent personality disorder.” de- The theory pre- the of the did it defense. Nor expert testimony fense asserted that the was arguing theory. clude the defense from its provides relevant “because a basis for ar- proposed jury Because the instructions were guing that—that it’s because of the nature of erroneous, the district court did not err relationship giving the that he was [Marsh] rejecting requested in Marsh’s instruction. money and not for some other reason.” Marsh next asserts that a from note motion, refusing The district court denied the jury during deliberations demonstrated expert testify. to to allow the jury’s confusion as to the district court’s regarding argues instructions Count I. In a note to that our decision in (9th Rahm, judge, asked whether the word States v. 993 F.2d 1405 United Cir.1993), in requires reject “harm” Counts II and III to fear referred reversal. We that loss, defamation, exposure, of “economic contention for reasons. The first reason two request psychiatric 1. Marsh's to conduct a exam- ric We "have examination. never held that the by any unsupported ination on the victim was may compel defense witnesses to be examined.” authority. competency McCormick, Because the victim's (9th Gilpin v. 931 testify dispute, legal was not in Marsh had no Cir.1990). compel undergo psychiat- basis to the victim to

1503 the error did not affect the that, the conviction on that district we affirm because than attempted imposed.” rather court’s selection of the sentence the basis — States, -, extortion, testimony is proffered expert v. United Williams U.S. importance. -, in 341 greatly diminished S.Ct. L.Ed.2d (1992). regarding evidence Doe’s sought to introduce prove personality disorder” “dependent district court The characterized Marsh’s not instilled telephone calls had that Marsh’s as “cruel and behavior ruthless” because in As we noted earli- requisite fear Doe. age, Marsh knew of Doe’s advanced er, requires attempted extortion the сrime of exposure. his fear of The court also found victim’s state of mind. of the no examination injury,” psychological citing “extreme Doe’s Ward, Consequently, 1347. 914 F.2d at See “attempt[s] to commit suicide on occa- two to exclude the testi- the trial court’s decision Further, sions.” the court found that be- relatively effect on the at- mony had little money by cause of Marsh’s efforts obtain Any relationship tempt conviction. between extortion, Doe “lost substantial assets psychiatric evidence and proffered living is now in a for the business. He home making in his econom- state of mind Marsh’s aged.” Additionally, considered compel its ic is far too attenuated threats language Marsh’s anti-Semitic and “the admission.2 [Doe’s] threats harm mother.” Second, be the nature support The record fails to the exis fully set out for Marsh and Doe tween tence of several of the facts that the court jury. that for most It was uncontestеd departure. upward cited of its As years relationship, Doe’s case, far as the record shows no voluntary. payments to Marsh payment to Marsh Doe was quite to evaluate Marsh’s harsh able 4,1991. involuntary prior messages light relationship,3 of that as is to more than factor the court referred acquittal its well evidenced once, impoverishment, apparently At alleging threats to Doe’s life. the counts According not caused Marsh’s threats. respect to the crime of least testimony, Doe’s own most extortion, court in the exercise of the district given voluntarily gave he properly could have concluded its discretion glad help him out.” As Doe told Doe “was expert would not have been evidence officer, probation over the course of jury. of assistance to the See $200,000. given he Marsh about had (9th Amaral, F.2d Cir. job May of 1991 sought part-time 1973); Fed.R.Evid. had deteriorated. because his own businеss According testimony and that of to his own

IV. Sentence niece, voluntarily providing he was still novo a district court’s We ‍‌‌​‌‌‌‌​‌​​‌​​‌‌​​‌​‌‌​​‌‌‌​​​​​‌‌​‌‌​​​​​‌‌‌​‌‌‍review de that time. support to Marsh at depart upward for “unusual cir decision to a court departing In from the Guidelines v. Lira-Barra cumstances.” Cir.1991) (en banc). (9th psychological za, 745, “limit its consideration of must 941 F.2d conviction.” United injury to the counts of findings factual for clear review related We (9th McAninch, 1380, 1387 F.2d If is considered States error. Id. an invalid factor Cir.1993). attempts two suicide Each of the sentencing, must remand for resen we to find “extreme which the court relied tencing “on the record as on unless we conclude harmless, i.e., crime of injury” preceded the whole, psychological the error was contrast, Rahm, Again by way the evidence testimony regarded of in Rahm expert 3. In 2. beyond the regarding interpretation of tests was capacity to know whether defendant's mental ”[m]oreover, average juror; understanding attempting pass currency was coun- she was to testimony Rahm, proffered to Rahm’s proffered related Nelson's 993 F.2d at 1414. The terfeit. difficulties, general specific perceptual hu- concerning not testimony present in the case could understand Doe and man deficiencies between nature of Rahm, experiences.” directly own intent in from their far less on Marsh’s Marsh bears threatening at 1414. to contact Doe’s customers. NOONAN, Judge, concurring and One such at- Circuit Marsh was convicted. which dissenting: at trial. The rec- tempt was not established divulge except it occurred fails to when ord you an “The defendant before innocent that, according district court’s state- to the claim, rarely man.” That heard a court of hearing, preceded sentencing at the ments sustained, rarely appeals and still more com- attempt that was dis- September judge. All pels the attention of the our attempted suicide cussed at trial. provisions appeal, scrutiny our of careful necessarily because of September record, hearing argument, our of our attempts, but be- alleged Marsh’s extortion conferencing analysis designed are money. of At this cause he had run out just prevent perversion such a of the criminal money not because point, he had run out of punishment upon process as the infliction of alleged proven by extortion way person. an innocent It is not our voluntary gave government but because he imprison a defendant because we do not like large amounts of worthy disapprov- him or find his conduct was inaccurate as to The district court stamped by If al. he is to be a felon federal example, Marsh other facts as well. For law, he must have committed a federal crime. injure Doe’s moth- made no actual threat to not, If he has he is innocent. Such er; years. had been dead for ten And she found contends he is. Such should be although outburst was Marsh’s anti-Semitic to be. offensive, truly it occurred on October part II and was of the basis for Count crimes, with charged Marsh was three acquitted of the indictment. acquitted by jury: two of which he was insulting lan- Consequently, that count. attempted extortion and extortion on October justification guage independent an is not 7,1991 Doe, by threatening to kill and extor- departure in upward this case. attempted tion and extortion on October by threatening to kill Doe. He was clearly On the basis of these erroneous attempted convicted of extortion and extor- facts, imposed the district court a sentence September by “wrongfully tion on speci- great two-and-a-half times as as that threatened fear of economic loss” to Doe. Sentencing fied for the Guidelines This court now finds the evidence insufficient offense level found the district court. Be- September him of extortion on convict magni- cause the number of errors and the departure, tude of the we are confident that I concur in this conclusion and elaborate Accordingly, errors cannot be harmless. iton as follows: To obtain a conviction of must vacate this and remand for sentence gov- threat of economic loss the resentencing. prove that Doe had an ernment had eco- nomic loss he could sustain. No evidence CONCLUSION presented actively in that Doe was busi- government failed elicit the testimo- ness in 1991. Doe 79was ny necessary from Doe that would be age. evaporated His business had with a completed a conviction for the crime change public feeling about the taste he However, of extortion. the record is suffi- catered to. He had a to affirm cient the conviction answering machine. 1991 he received no extortion; a rational trier of fact could have upon calls it. He business had obtained beyond a found reasonable doubt job part-time organization with a fraternal attempted to extort from Doe himself, and he borrowed from his threatening to call his customers. The dis- is no that he had relatives. There evidence jury trict court’s instructions in this case By any to lose. Doe’s own testi- customers adequate. Only sentencing were at work,” mony now was “office work phase did the district court commit reversible selling product. not a Consequently, AFFIRM the con- error. viction, asked, then, may Why, the sentence and RE- It be did Marsh VACATE resentencing. Francis and the “Thurman”? MAND for refer to the St. very answer, difficult to do without a may suggested, was habit. was reasonable it be The game, message’s meaning. playing an old about the and Doe were doubt fully below. Whatev- more discussed will be difficulties, Beyond there are these two have been thoughts, he cоuld not er Marsh’s juror further rational con- obstacles underlying if the facts guilty of extortion cluding attempting that Marsh was extortion: is not impossible. crime man made the corpse. if he assaults a guilty of murder First, Marsh’s reference to one two if extortion guilty not of economic attempt could not have been an hotels a business. threatened defunct he (as if fear of economic loss even instill was shown) the hotels had still been never active attempt to threaten the Did Marsh even It is a matter of common customers Doe. knew a Given that Marsh dead business? gay style accepted affairs, knowledge life is it seems Doe and his good about deal public office in San Francisco. Marsh could did, holding majority, unlikely that he but the Doe, a former sales- not have believed attempt, that a guilty of an finds world, ways man wise in the of the would juror found that he did could have reasonable public in conclusion, doing think hotels businеss with the attempt. To reach this make this Francisco would have discontinued busi- presented that there was one conclude must he had a male ness with Doe because friend. establishing beyond a to the evidence unproven would It is that Marsh have step took a doubt that Marsh reasonable thought that he could that Doe would believe and that making an economic threat toward Doe, any, if disrupt the.business relations creating fear in Doe the intention of he had by stating telephone on the to an unknown by making economic threat. he, Marsh, employee that hotel Doe’s is considera- proposition initial there As an friend, twenty-four years ago close had sold difficulty reaching this conclusion be- ble him, and had a criminal record. sex cause the evidence that might apprehensions of what vague evi- on is the same certainly say the embarrassment reflected Sep- that he did commit extortion dence brought up in when an old man an era homo- viz., single sentence in stream tember quiet. Playing on practices kept were sexual answering messages left on a anxiety does not Doe’s embarrassment single If did this machine. sentence threatening fear of economic amount to loss. loss, of economic could constitute a threat attempt an to threaten economic constitute Second, no trier of fact could have rational requisite intent to If Marsh lacked loss? that is single sentence now understood the extortion, req- could he have had commit conviction as made the of Marsh’s basis attempt extortion? uisite intent standing without context. immedi- alone three provided mes- in con- ate context is attempt developed has The law answering machine on sages on Doe’s rob- left physical crimes like bank nection with messages were as fol- September 4. Thesе gun trips as he bery. The man with a who said, message “Please have a may readily to have lows: first be found enters a bank here 15 minutes. upon hundred dollars down attempt the course of been in my way Extortion, contrast, I’ll ... on to San Francisco. com- Or be is a crime bank. joke right Uh, game and no is ... are not no the words words. When mitted now_this gun I had a fear, real serious. enough it is hard to create coercive message, left six second my head.” .The they how nonetheless understand later, said, your into “I’ll break notes that minutes The court attempt at extortion. way in. Now second message place_ I’ll find if never asked Marsh’s Doe ... all, um, calling Thurman Hotel Hence, I’ll be harm. with- fear economic made him uh, message and, ...” The Francis con- St. at all of the effect any evidence out life, your tinued, my it’s on con- lose “[I]f in- I person it was upon the communication message, sent three third for, supposed to assess science.” tеnded said, “Doe, sorry later, I’m hours message-sender. To the intentions you please do morning, would an asshole this in such a vacuum that determination make 1506 personality. Sorry me Doe? for an Marsh’s He considered Marsh a for “very you please good do that for me?” friend.”

asshole. Could After initial occasions on which Doe (cid:127) supposes that it is reasonable to No one sex, paid money specifically he did not sentence, phrase out of a or a sen- break but, compensate in exchange Marsh for sex paragraph, quote tence out of years, “consistently over the asked for isolated words without reference to their con- money.” “glad help Doe was out.” him single isolate a from a text. To line flow question by government, To the asked “If taking continuous communications like asked, you money?”, he would send him some qualifies paragraph sentence out of the response period was affirmative. For a rationally it. No trier of fact could under- employed of several months also Doe single stand this sentence without reference in opinion, his business. In Doe’s precedes to what and follows it. The com- financially dependent on Doe. September munications of 4 show Marsh pattern giving by Doe to Marsh was bluffing at all times. He said he had a peculiar. Money head, was dribbled in small gun game at his that it was no and no by amounts joke, Western Union. The method but he knew Doe would not believe he by chosen Doe incurred kill transac- would himself in fifteen minutes if he substantial expenses tion in order to send small get didn’t The last communica- following amounts. The transfers day Doe to explicit tion of the contains acknowl- Marsh were introduced at trial: edgment of the silliness of his earlier mes- 5, sages. April answering context of ma- 1991 $100 5, April 1991 35$ tape, single chine sentence is not a 5, April 1991 $145 threat. 5, April 1991 45$ 5, April 1991 65$ larger long relationship context of the 5, April 1991 65$ Doe, of Marsh and and Doe’s method of 5, April 60$ him, keeping dependent upon is also April 50$ understanding to an essential of what the April 45$ September communication of 4 meant. No There are hundreds of similar transfers ignore rational trier of larger fact could Marsh, from Doe continuing peri- into the or, account, taking context it into find that alleged od of the extortion. The first trans- twenty-four- the first and time in a messages Septem- fers to Marsh after the year relationship Marsh had ber 1991 are as follows: threaten with economic harm man who September $85 friend, nuisance, beneficiary, viewed him as a September $85 co-dependent. The facts of that relation- September $65 trial, ship they emerged always at consid- multiple Similar transfers to Marsh Doe standpoint ered from the most favorable to day 14,15,16, were made each government, were as follows: 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 30 and October twenty-four years Doe met Marsh before 12, 13,14, 15, 16, 17, single 18. Not a one of trial in Angeles, respond- Los when Doe proved these transfers of to be newspaper ed to a advertisement for male involuntary, extorted, response or in to a engaged models. Doe then in a sexual rela- threat of economic loss. Marsh, tionship paying prostitution. repeated The transaction was played important part the next two or three times Marsh had con- the Doe-Marsh in at least the tact with friendship years. Doe. Thereafter a de- last several For three and one-half veloped they between Doe and preceding they Marsh and the events in the case saw each year, other three or four times a had not seen each other. Doe lived usually Francisco, period days. for a Angeles. They of two to five Los These occasions stayed by phone. phone were marked a sexual in touch and, addition, enjoyed relation phone apartment. in Doe’s It was his him, calls, money dole out vate Marsh’s collect— person who called only phone. The whining Say and abuse. the accept his the evidence and far as only person as the if one relationship unwholesome wishes maintained the was Doe Marsh. shows—was judgment. upon a moral The and to enter part, in to talk Marsh rela- at least phone, single criminal. sentence tion was not requests for to his respond single telephone message did blurted out in for Marsh to call pattern was regular The so, it the sentence consti- not make nor did home, machine not at If Doe was collect. in itself. tute crime the call message, Doe returned took Normally the by Marsh. left to the number The Excluded Evidence telephone in pay Los that of a number was testimony Dr. Ar- proffered the of first telephone for the bill Angeles. Nelson, experienced psychologist, to valea calls made a hundred of 1991 shows over part dependent “from a that Doe suffered show Angeles. The phones in Los pay him to co-dependent type ... a personality disorder made, They to Marsh. were were made calls relationship in members were which both voluntarily by goes, the evidence far as all as relationship getting something out of the Doe. involved in the relation- both members were business spring of when Doe’s In the ship voluntarily.” government objected The money requests for away, Marsh’s fallen had relevant; testimony would not that such be to meet stop, and Doe continued not did go testimony not to an would essen- consequence, Doe’s bills were them. As sug- tial element of the crime. The court that her paid. Doe’s niece was aware not testimony “on gested the offered money giving Marsh for sev- had been uncle victim;” credibility of the issue of thе him to discontinue years and advised eral that, words, “could not have in Doe other paying of took over the paying She Marsh. to.” experienced that he’s testified the fear gave knew if she bills because she her uncle’s n remarked, ‍‌‌​‌‌‌‌​‌​​‌​​‌‌​​‌​‌‌​​‌‌‌​​​​​‌‌​‌‌​​​​​‌‌‌​‌‌‍certainly “That’s government send to Marsh. money to he would ‘Well, I court stated: proffer.” not the Marsh, 1991, while Doe never saw During ... use.” don’t see its otherwise contact, typi- opinion close expert’s he continued would be explained that accepting Angeles and col- cally calling Los Mr. relationship of that that “it’s because Francisco from Marsh on lect calls and contin- Mr. Marsh giving Doe beginning Sep- Up until the telephone. accepted this The court ues to do that.” $24,000 in Doe had sent saying: purpose tember 1991 “The of the ex- explanation, large of this sum was 1991 alone. None rela- testimony ... to describe the pert [is] response to tion, shown have been sent bеcause that it was show loss. relationship threat of economic and not nature fear, given.” The ... that 1,1991 cut his wrists Doe On testimony. proffered court then excluded hospitalized. attempt To and was a suicide government by the question asked the evidence This now holds re- attempt, him the Doe had led what prove because to not relevant proffered was money.” could no all out of Doe plied, “I was government had the contact with Marsh longer maintain mind, Doe’s. Marsh’s state to show desperation, for all money. His giving him proffer Marsh’s purpose But the appears, was emotional. relationship, prove mind as much as his state of bore on hospitalization his consequence of his As a testimony ad- had If Nelson’s been Doe’s. the FBI. nephew-in-law contacted niece and mitted, have shown both Marsh messages it would monitored the FBI thereafter voluntary transactions. engaged answering machine. Dоe on Doe’s recorded interpreted have been would Doe Marsh’s words of his relatives the intervention Without as, put but Marsh in context not as extortion be- taped Marsh or have have would never it, “in which both members exchange Without against Marsh. a witness come relationship.” something getting out intervention, culti- was content to their asking It was error to exclude Nelson. United woman her lover for financial aid of a (9th Cir.1993). Rahm, given twenty-four years, F.2d 1405 kind he had her for v. States imagine it' is case, difficult that she would have peculiarly apt in that Rohm is indicted, been let alone have been convicted too,»the testimony of Dr. Arvalea Nelson was imprisonment. and sentenced to five of defendant, proffered a criminal and the erroneously district was found have Not all of the scientific relevant data is it, prejudicially necessitating excluded see, beyond dispute, e.g., critique of Rohm, proffer retrial. went to the Allay Swann et al. Lauren B. Alan& J. ability recognize forged defendant’s cur Lipman, Depression and Posi Selection of rency. proffer Here the went to an even Negative tive and Social Feedback: Motivat issue, psychological more sensitive the .nature Balance, Cognitive ed 101 J. Preference relationship. (1991). of the Marsh-Doe Psychol. 316 But under Abnormal interpretation of 702 of Rule the Federal body specialized of scientific knowl Rules of Evidence which is now established edge now exists as to the kind of relation law, testimony expert psychologist of an Marsh had to Doe. While no doubt there are on these matters should have been admitted. nature, popular some views as to its it is Pharmaceuticals, Daubert v. Merrell Dow scarcely testimony contestable of an —Inc., -, -, U.S. 113 S.Ct. expert helpful evaluating would have been (1993). 125 L.Ed.2d 469 The district example, Marsh’s state of mind. For it is court committed error not undеr Rahm recognized by expert opinion that such a but under Daubert. dyad close relation creates a two act as —the deprived The error was not harmless. It dynamism dyad one—and the of a is distinct way Marsh of persuading his best of from the actions isolated individuals. A that his words threats but an old dyad explain constructs a narrative to game that both he and Doe knew well. If negative and to absorb the ele Marsh is not to be held innocent always positive ments threaten the side court, very at the least he is entitled to a new intimacy. Murray See Sandra L. & John trial. Holmes, Seeing G. Virtues in Faults: Ne majority I concur with the that Doe’s sen- gativity Interper and the Transformation of excessive, tence was proportion out of all sonal Relationships, Narratives in Close conviction, the crime illegal under the (1993). Personality Soc.Psychol. J. & Sentencing Guidelines. played That Marsh in his harsh taunts to a side of Doe that welcomed suсh treatment way

and in no feared or resented it could also by expert opinion. ‍‌‌​‌‌‌‌​‌​​‌​​‌‌​​‌​‌‌​​‌‌‌​​​​​‌‌​‌‌​​​​​‌‌‌​‌‌‍have been illustrated See al., Allure Swann, B. Nega

William Jr. et tive Strivings Feedback: Self-Verification Persons, Among Depressed 101 J. Abnormal PUBLIC SERVICE COMPANY OF COL (1991). Psychol. 293, Expert testimony ORADO, corporation, a Colorado Plain equally would have shown that the discom tiff-Appellee/Cross-Appellant, experienced by fort Doe at the idea disclosure of his secret relation to Marsh was COMPANY, CONTINENTAL CASUALTY fear, not economic nor did Marsh intend it to Insurance, CNA Defendant- d/b/a be, but that what Marsh teased with was Appellant/ Cross-Appellee. precious the loss of a secret because was 90-1320, preoccupation,” especially “an obsessive dear Nos. 91-1201. Weg secret one. See Daniel M. Appeals, United States Court of al., ner Relationships, et The Allure Secret Tenth Circuit. Personality Soc.Psychol. 66 J. & June (1994). man, That engaged Marsh was a in a psychical sexual and relation with another

man, particularly appropriate made his ease expert testimony. If Marsh had been a

Case Details

Case Name: United States v. David Peter Marsh

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 27, 1994

Citation: 26 F.3d 1496

Docket Number: 92-10504

Court Abbreviation: 9th Cir.