United States of America, Plaintiff-appellee, v. Jimmie L. Ward, Defendant-appellant, 914 F.2d 1340 (9th Cir. 1990)

United States v. Aguon, 851 F.2d 1158, 1168 (9th Cir. 1988) (en banc) (Aguon II) (quoting United States v. Aguon, 813 F.2d 1413, 1419 (9th Cir. 1987) (Aguon I) ). Thus, the failure to give a mens rea instruction in a Hobbs Act extortion case is plain error; however, this is not an extortion case, but an attempted extortion case.

Because the indictment charged the defendant in the conjunctive, that is, extortion and attempted extortion, the jury instructions must be examined to determine the crime upon which the jury deliberated. The district court instructed the jury on Count Three by reading the indictment and 18 U.S.C. § 1951.⁵  The court then stated the following:

In order to convict the defendant of attempted extortion as charged in Count III of the indictment, the government does not have to prove that Mr. Bagala actually feared economic loss. However, the government must prove an attempt to instill fear, that is, that the threat made by the defendant was reasonably calculated to instill fear of economic loss in Mr. Bagala.

A person may be guilty of an attempt for deliberately doing some act to try to commit an extortion even though no extortion is in fact carried out. An attempt is more than mere planning or preparation. The evidence must show that the defendant took such a substantial step to indicate a firm intent to commit the crime.

(Emphasis added). Thus, the court limited the instruction to the crime of attempted extortion.

The crime of attempt consists of two elements. First, the government must prove "culpable intent." United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980), cert. denied, 450 U.S. 957, 101 S. Ct. 1416, 67 L. Ed. 2d 382 (1981). In other words, "the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting." United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974), cert. denied, 419 U.S. 1114, 95 S. Ct. 792, 42 L. Ed. 2d 812 (1975). The second element is "conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent." Snell, 627 F.2d at 187.

The jury instructions given by the district court must be viewed as a whole to determine whether they were adequate. See United States v. Egan, 860 F.2d 904, 907 (9th Cir. 1988). We acknowledge that the instructions given were not perfect. Nevertheless, the district court did refer to the defendant's state of mind that must be shown beyond a reasonable doubt in order to convict: "an attempt to instill fear, that is, that the threat made by the defendant was reasonably calculated to instill fear of economic loss in Mr. Bagala." Thus, the jury was instructed that Ward's culpable intent must be to instill fear in the victim. The district court further instructed that the defendant must act "deliberately."

The district court made references to the intent required to convict Ward of attempted extortion under the Hobbs Act. To be sure, the district court failed to give a clear and succinct jury instruction on the requisite state of mind. The error in this case, however, is not so plain as to require the exceptional remedy of reversing the appellant's conviction on Count Three.

The appellant also challenges the instructions given in Count One, which charged Ward with "Attempted Extortion by False Representation" in violation of 18 U.S.C. § 872. The appellant argues that, because the judge gave erroneous instructions in Count Three, there was spill-over prejudice. See United States v. Bordallo, 857 F.2d 519, 528 (9th Cir. 1988) (reversing convictions for conspiracy to commit extortion because of spill-over prejudice from an erroneous extortion instruction), cert. denied, --- U.S. ----, 110 S. Ct. 71, 107 L. Ed. 2d 38 (1989).

Because there was no plain error in the trial court's jury instructions on Count Three, there can be no spill-over prejudice requiring the automatic reversal of the conviction on Count One. An examination of the jury instructions given on Count One reveals that the instructions given were adequate,⁶  except for any deficiencies that may have existed as a result of the court's instruction on the intent required for a conviction of the crime of attempt. The district court committed no plain error in the jury instructions on Count One.

The appellant also argues that his convictions on Counts One and Three must be reversed because the district court failed to give an instruction on the element of inducement. In Aguon II, 851 F.2d at 1166, the Ninth Circuit held that inducement is an essential element of the crime of extortion under the Hobbs Act. "Inducement" can be in the form of a demand, or it can manifest itself in a more subtle form, such as custom or expectation. Id. Thus, the district court is not required to use the word "inducement" in the jury instructions. See United States v. Egan, 860 F.2d at 907.

The district court did not instruct the jury on the essential elements of the crime of extortion because the trial judge specifically narrowed the charges to attempted extortion. Thus, the district court was required to instruct and did instruct the jury only on the elements of the crime of attempt. Furthermore, the jury instruction given on the definition of the crime of extortion specifically states that the defendant must induce the victim to turn over his property by actual or threatened force or fear. Thus, the jury instructions were adequate.

The appellant has not sustained his burden of showing plain error in the jury instructions requiring the reversal of his convictions on Counts One and Three. Therefore, we affirm the convictions.

The appellant argues that there was insufficient evidence to sustain a conviction on the extortion charges. According to the appellant, there was no proof on the element of fear as required for a Hobbs Act conviction. Thus, the evidence adduced at trial supported a conviction of blackmail, not extortion.

In reviewing the evidence adduced at trial to assess its sufficiency to support a conviction, this court "must consider the evidence in the light most favorable to the Government and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir. 1984). The court must draw all reasonable inferences from the evidence. Id.

The appellee argues that the defendant waived all rights to appeal the sufficiency of the evidence on Counts One and Three. In order to preserve this issue on appeal, the defendant must move for a judgment of acquittal during the trial pursuant to Fed. R. Crim. P. 29(a). See United States v. Harden, 846 F.2d 1229, 1232 (9th Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 264, 102 L. Ed. 2d 252 (1988); United States v. Curtis, 568 F.2d 643, 647 (9th Cir. 1978). The record reveals that the defendant failed to move for a judgment of acquittal after the government rested its case-in-chief, after the defense rested, and after the government's rebuttal case. Therefore, the appellant waived his right to challenge the sufficiency of the evidence on appeal. Nevertheless, a brief examination of the appellant's argument will demonstrate that there was sufficient evidence in the record to sustain his convictions.

The Hobbs Act defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b) (2). The appellant maintains that fear is an essential element of the crime of extortion. The victim in this case was aware, at least before he handed Ward a check for $5,000, that the defendant was not an undercover agent for the Department of Transportation. Thus, the appellant argues, Bagala could not have been induced by fear to turn over his property.

The appellant's argument must fail because the defendant was not convicted of extortion. His convictions on Counts One and Three were for attempted extortion. That being so, the victim's state of mind is not important. What is important is that the defendant attempted to instill fear in the victim. See Carbo v. United States, 314 F.2d 718, 741 (9th Cir. 1963) ("To prove a substantive act of attempted extortion it is necessary to prove an attempt to instill fear."), cert. denied sub nom. Palermo v. United States, 377 U.S. 953, 84 S. Ct. 1625, 12 L. Ed. 2d 498 (1964). The evidence adduced at trial shows that the defendant attempted to obtain money from Mr. Bagala by pretending to be an undercover agent for the Department of Transportation who could cause the victim substantial financial harm if Mr. Bagala did not make the requested payment. Clearly the appellant attempted to instill fear in the victim and his argument on appeal is without merit.

The appellant waived his right to appeal the convictions on Counts One and Three based upon the insufficiency of the evidence because he failed to move for a judgment of acquittal at trial. Even if he had preserved his right to appeal, there is sufficient evidence in the record to sustain his convictions. We affirm the judgment of conviction on Counts One and Three.

C. Upward Departure from the Sentencing Guidelines

After the jury convicted the appellant on all three charges, Ward's guideline range was calculated at 33 to 41 months.⁷  The United States Attorney argued for an upward departure, which the defendant opposed. The district court departed upwards and imposed a sentence of sixty months in custody, followed by five years of supervised conditional release.

The appellant challenges the district court's upward departure from the Sentencing Guideline range. This court's review of a departure involves two steps. First, we must determine whether a departure is permissible on the grounds stated by the sentencing court. United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989). If the sentencing court departs based upon a circumstance that is improper, we must vacate the sentence and remand for resentencing. United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir. 1989). When the reasons articulated for the departure are proper, we then must determine whether the sentence imposed is unreasonable. Michel, 876 F.2d at 786. If the sentencing court relied upon factors that already were taken into consideration in the guidelines, the departure is unreasonable and the sentence must be vacated and remanded. United States v. Nuno-Para, 877 F.2d 1409, 1414 (9th Cir. 1989). A sentence is unreviewable if the sentencing court fails to articulate adequately either the grounds for departure or the reasons for the extent of the departure. United States v. Cervantes Lucatero, 889 F.2d 916, 919 (9th Cir. 1989).

In the instant case, the district court justified its upward departure on two bases: prior criminal history and obstruction of justice.⁸  The court cited Guideline Sec. 4A1.3, which is a policy statement concerning the adequacy of the Criminal History Category. Section 4A1.3 permits an upward departure from the applicable guideline range: "If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range." Thus, this kind of departure clearly was contemplated by the Sentencing Commission.

The other factor upon which the district court relied--obstruction of justice--is contemplated in the Sentencing Guidelines as well. Guideline Sec. 3C1.1 provides that the defendant's base offense level should be increased two levels if the defendant "willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice." This obstruction of justice enhancement includes testifying untruthfully at trial. See Sentencing Guidelines Sec. 3C1.1, Application Notes 1(c).

Both grounds articulated by the district court for the upward departure are proper under the Sentencing Guidelines. Accordingly, we must turn to the second inquiry, that is, whether the departure is unreasonable. We are unable to review whether the departure is unreasonable, however, because the district court failed to articulate with sufficient particularity the extent to which he relied upon each factor in departing upward.

On remand the district court must articulate the reasons for the departure and the extent to which it relies on each factor individually. With respect to the obstruction of justice factor, the Presentence Report reveals that Ward's base offense level was adjusted upward two points for obstruction of justice. Therefore the district court may not depart upward based upon the defendant's obstruction of justice unless Ward's case of perjury was significantly more egregious than the ordinary cases of obstruction listed in the application notes to Sec. 3C1.1, of which the Commission has taken full account. If the district court concludes that Ward's obstruction was significantly more egregious, it must make findings to support its conclusion and explain its reasons for the extent of the departure based upon the findings.

The district court also must clarify the extent to which it relied upon the defendant's criminal history in departing upward. The appellee speculates that the sixty month sentence imposed reflects an upward movement of one criminal history category--from Category V to VI.⁹  We cannot rely on such speculation. On remand the district court should state explicitly the criminal history category on which it relies in sentencing the defendant. If the district court departs upward to reflect adequately Ward's true criminal history, the court should do so by analogizing to the criminal history category in the Sentencing Guidelines in which the defendant's "true history" places him, stating its reasons for the analogy. See United States v. Montenegro-Rojo, 908 F.2d 425, 431 (9th Cir. 1990); United States v. Rodriguez-Castro, 908 F.2d 438, 443 (9th Cir. 1990). We note that in United States v. Nostrangelo, 909 F.2d 363, 366-67 (9th Cir. 1990), amended October 25, 1990, slip op. 13527, 13538, we held that under commentary 8 of Guideline Sec. 4A1.2, prior convictions that were not counted into the criminal history because of age should not automatically be considered as a basis for upward departure under Sec. 4A1.3 unless they were similar in nature to the charged offense(s) [or were indicative of defendant's receipt of a substantial portion of income from criminal livelihood.]

Thus, we remand to the district court for resentencing in accordance with this opinion.

AFFIRMED IN PART AND REMANDED FOR RESENTENCING.