United States v. Ghalashahi

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 03-1770

UNITED STATES OF AMERICA,

Appellee,

v.

ANDREW GHALASHAHI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

(Hon. Steven J. McAuliffe, U.S. District Judge)

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Shelly Kindred for appellant.
Donald A. Feith, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief for
appellee.

March 16, 2004
 Per Curiam. Defendant-appellee Andrew Ghalashahi was

convicted of conspiracy to commit extortion, in violation of 18

U.S.C. §§ 371 and 875(d); extortion, in violation of 18 U.S.C. §

875(d); and receiving proceeds of extortion, in violation of 18

U.S.C. § 880. He appeals from that conviction, contending that the

district court erred when it reserved its ruling on his motion for

judgment of acquittal under Fed. R. Crim. P. 29 after the

government's case-in-chief, and thereafter denied both his original

and renewed motions for judgment of acquittal after the close of

all evidence. We find his arguments unavailing and affirm.

I. BACKGROUND

In the early morning hours of June 29, 2002, Kurt

Engelhardt and Melissa Harbour met at a house party hosted by

Harbour's friend, Ava Weldon, in Manchester, New Hampshire.

Harbour was highly intoxicated throughout the night--Engelhardt

observed her falling down three or four times, twice falling to the

ground. According to Engelhardt's testimony at trial, they left

the party at approximately 6:30 a.m. After conversing over coffee

at a local restaurant, Harbour invited Engelhardt back to her home.

Upon arrival, she gave him a tour of the home and spoke about her

two year-old son. Again according to Engelhardt's trial testimony,

the two proceeded upstairs and thereafter engaged in sexual

intercourse with a condom provided by Harbour. Within a short

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time, Engelhardt left the Harbour residence. He neither asked for

Harbour's telephone number nor gave his number to Harbour.

Kathryn Burton, a friend of Harbour's who had also

attended the house party, left the Weldon home at approximately 7

a.m. She went to Harbour's apartment, went into the second bedroom

across the hall from Harbour's bedroom, and fell asleep. At trial,

she testified that Harbour entered the room later in the morning

and was laughing. Burton eventually left Harbour's home at

approximately 11 a.m. that same day. Before departing, she entered

Harbour's bedroom and observing her sleeping, unsuccessfully tried

to wake her.

Later that afternoon, Harbour and Weldon got together

again and went shopping at a local mall. They then went country

line dancing at a bar in Methuen, Massachusetts. They returned to

Manchester later in the evening, where they visited a couple of

bars through the night, and then had breakfast together in the

early hours of the morning.

Weldon testified that, a few days later at Harbour's

request, she obtained Engelhardt's phone number from John

Schiavone, a friend of Engelhardt's, and gave it to Harbour.

Weldon also testified that Ghalashahi and Harbour had been engaged

in a romantic relationship at some point.

A few days later on July 2, Engelhardt received a number

of voice mail messages in which Ghalashahi, through a computerized

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voice, repeated, "We know what you did. We're going to the police.

You have to pick up the phone. You're a jerk." The following

morning, Ghalashahi called again and Engelhardt spoke to him for

the first time. He assumed that the caller was Harbour's boyfriend

and apologized to the caller while explaining that Harbour had told

him that she did not have a boyfriend. Ghalashahi told Engelhardt

that he and Harbour were just friends and then asked Engelhardt to

explain what happened between him and Harbour. Engelhardt in turn

told Ghalashahi that he and Harbour had engaged in sexual

intercourse. Ghalashahi expressed surprise because Harbour had not

told him that she and Engelhardt had had sex.

Ghalashahi then told Engelhardt that he had a friend who

had gone to prison for sexually touching a girl and that Harbour

was going to report him to the police for rape unless Engelhardt

paid her $5,000. Later that same day, Engelhardt received another

phone call from Ghalashahi, who this time demanded $50,000 and told

Engelhardt to meet him at a store in Manchester, New Hampshire at

approximately 5:00 p.m. that day.

At the meeting, Engelhardt and Ghalashahi sat in

Engelhardt's car. Ghalashahi identified himself as "Drew." He

gave Engelhardt a handwritten list of demands, which included a

demand for a written apology, a sexually transmitted disease test,

and $150,000. The list gave Engelhardt credit for the $5,000

demanded earlier in the day, even though at that point it had not

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been paid, and listed an outstanding balance of $145,000. In

conversation, Ghalashahi told Engelhardt that Harbour had demanded

$300,000, but that he had talked her down to $150,000. At the end

of the meeting, Engelhardt gave Ghalashahi $5,000. Ghalashahi then

told Engelhardt that he was going to meet with Harbour, who he said

was waiting nearby in Ghalashahi's car.

Between July 3 and July 22, 2002, Ghalashahi called

Engelhardt at least once per day to ask about the money demanded,

on some occasions calling several times a day. On July 22,

Engelhardt contacted the FBI.

While Engelhardt was describing the events of the past

three weeks to the FBI, he received a phone call from Ghalashahi.

With Engelhardt's consent, the FBI recorded the conversation. At

the FBI's direction, Engelhardt set up a meeting with Ghalashahi

for July 23, 2002, mentioning to Ghalashahi that he might not have

all the money by this time.

Later on July 23, the FBI, again with Engelhardt's

consent, recorded another phone conversation with Ghalashahi during

which Ghalashahi admonished Engelhardt for mentioning the meeting

location on the telephone. Ghalashahi spoke in code, referring to

the purpose of the meeting as relating to a car purchase and

payment by cashier's check.

On July 24, 2002, Ghalashahi was charged with one count

of extortion. He appeared before a Magistrate Judge and was

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released on conditions. On August 2, 2002, he was arrested for

violating his conditions of release after the United States

Probation Office learned that he had attempted to contact Harbour.

On August 22, 2002, a federal grand jury indicted him on three

charges: (1) Count One, conspiracy to commit extortion, in

violation of 18 U.S.C. §§ 371 and 875(d); (2) Count Two, extortion,

in violation of 18 U.S.C. § 875(d);1 and (3) Count Three, receiving

proceeds of extortion, in violation of 18 U.S.C. § 880.

At a January 23, 2003 final pretrial conference, the

district court noted that Ghalashahi might have a defense under the

claim of right doctrine. The government objected to the

application of the defense. The court eventually overruled a

motion in limine filed by the government seeking to exclude the

claim of right defense to the extortion charge and any evidence in

support of the defense.

A jury trial commenced on February 4, 2003. In addition

to the evidence described above, the government introduced

telephone records showing that Ghalashahi had made 131 telephone

1
18 U.S.C. § 875(d) provides:

Whoever, with intent to extort from any person, firm,
association, or corporation, any money or other thing of value,
transmits in interstate or foreign commerce any communication
containing any threat to injure the property or reputation of the
addressee or of another or the reputation of a deceased person or
any threat to accuse the addressee or any other person of a crime,
shall be fined under this title or imprisoned not more than two
years, or both.

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calls to Engelhardt's cell phone from July 2, 2002 through July 23,

2002, and forty-one calls to Harbour's telephone numbers during the

same period. Also, the government introduced a series of

admissions by Ghalashahi to law enforcement in which he (1)

explained that every time he had contact with Engelhardt he soon

thereafter spoke either in person or via telephone with Harbour,

(2) admitted his intent to scare Engelhardt, (3) admitted splitting

with Harbour the $5,000 that Engelhardt paid him on July 2, 2002,

and (4) admitted that a deposit slip in the amount of six thousand

dollars found on his person at the time of the arrest pertained to

some of the money he expected to receive from Harbour later that

day. On February 6, the government rested its case and Ghalashahi

moved for a judgment of acquittal under Fed. R. Crim. P. 29(a).

The court reserved ruling on the motion. The trial proceeded and

Ghalashahi testified in his own defense. He renewed his motion for

judgment of acquittal after the close of all evidence. The court

denied his original motion, explicitly stating that it was relying

only on the evidence presented by the government in its case-in-

chief. It also denied Ghalashahi's renewed motion.

On February 7, 2003, the jury found Ghalashahi guilty on

all three counts. On May 14, 2003, he was sentenced to thirty

months imprisonment on Count One and twenty-four months

imprisonment on Counts Two and Three. This appeal followed.

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II. DISCUSSION

In general, we review de novo a district court's ruling

on a motion made pursuant to Fed. R. Crim. P. 29(a). See United

States v. Diaz, 300 F.3d 66, 78 (1st Cir. 2002). We view the

evidence in the light most favorable to the verdict, draw all

reasonable inferences and credibility disputes in the verdict's

favor, and then determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt. See United States v. Czubinski, 106 F.3d 1069, 1073 (1st

Cir. 1997); United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.

1992) (must uphold any verdict that is "supported by a plausible

rendition of the record"). Our review spans the totality of the

evidence, both direct and circumstantial, and we "reject those

evidentiary interpretations and illations that are unreasonable,

unsupportable, or overly speculative." United States v. Spinney,

65 F.3d 231, 234 (1st Cir. 1995).

First, Ghalashahi argues that the district court lacked

authority to reserve its ruling on his motion for judgment of

acquittal made at the end of the government's case-in-chief. The

plain language of Rule 29 provides otherwise:

The court on motion of a defendant or of its
own motion shall order the entry of judgment
of acquittal of one or more offenses charged
in the indictment or information after the
evidence on either side is closed if the
evidence is insufficient to sustain a
conviction of such offenses.

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Fed. R. Crim P. 29(a). The rule continues:

The court may reserve decision on the [Rule
29] motion, proceed with the trial (where the
motion is made before the close of all the
evidence), submit the case to the jury, and
decide the motion either before the jury
returns a verdict or after it returns a
verdict of guilty or is discharged without
having returned a verdict. If the court
reserves decision, it must decide the motion
on the basis of the evidence at the time the
ruling was reserved.

Fed. R. Crim. P. 29(b). The Advisory Notes to the 1994 amendment

of the rule state that the court is allowed to reserve judgment on

a Rule 29 motion made at the close of the government's case-in-

chief:

The amendment permits the reservation of a
motion for a judgment of acquittal made at the
close of the government's case in the same
manner as the rule now permits for motions
made at the close of all of the evidence . . .
. While the amendment will not affect a large
number of cases, it should remove the dilemma
in those close cases in which the court would
feel pressured into making an immediate, and
possibly erroneous, decision or violating the
rule as presently written by reserving its
ruling on the motion.

Fed. R. Crim. P. 29 advisory committee's note. The Advisory

Committee recognized the problem in a scenario "where the defense

decides to present evidence and run the risk that such evidence

will support the government's case." Id. The rule takes care of

that problem by providing that the district court "consider only

the evidence submitted at the time of the motion in making its

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ruling, whenever made" and "in reviewing a trial's court ruling,

the appellate court would be similarly limited." Id.

Here, the district court followed Rule 29's requirements.

It reserved its ruling on Ghalashahi's motion at the close of the

government's case-in-chief upon concluding that the government's

evidence could sustain a conviction. At the close of all evidence,

the court denied Ghalashahi's Rule 29 motion (original and renewed)

based on the same quantum of evidence presented by the government

during its case-in-chief:

I reserved ruling on the motion for judgment
of acquittal under Rule 29 at the close of the
government's case, and considering the
evidence presented by the prosecution in their
case in chief, not considering the evidence
presented by the defense, focusing solely on
the evidence presented by the government, [the
government] persuaded me that the indicia of
fraud, if you will, could be found by the jury
to be evidence of lack of sincerity or honest
belief and the legitimacy of the claim of
right. And therefore, given Mr. Engelhardt's
testimony that a sexual assault or no assault
of any type occurred at all, plus the evidence
of the actions and demeanor and manner of
behavior of the defendant in carrying out the
so-called negotiations, the jury could find a
reasonable doubt every element of the offense
charged, the offense as charged. So the
motion is denied.

The court concluded that the jury could find beyond a

reasonable doubt every element of the charged offenses based on the

government's evidence alone. We review a district court's

reservation of a Rule 29 ruling for an abuse of discretion. See

United States v. Davis, 1996 U.S. App. LEXIS 1388, at *7 (6th Cir.

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Jan. 16, 1996) (citing United States v. Walton, 908 F.2d 1289, 1294

(6th Cir. 1990)). We see none here.

Second, on a more substantive ground, Ghalashahi contends

that the government failed to submit evidence sufficient to sustain

a conviction on any of the charges and that the district court

committed reversible error by reserving and then denying his Rule

29 motion for judgment of acquittal. Specifically, he contends

that the government failed to disprove his claim of right defense.2

2
Ghalashahi had no quibble with how the claim of right defense
was presented to the jury. The district court's instruction to the
jury read:

The defendant cannot be guilty of extortion, or conspiracy to
commit extortion, or receipt of the proceeds of extortion if:
First, he, or the person on whose behalf he was acting, has a
valid claim that he, or the person on whose behalf he was acting,
had a valid claim to the money demanded.
Second, the facts he allegedly threatened to disclose in an
effort to collect that money were solely related to that valid
claim.
And third, he reasonably and honestly believed those facts to
be true.
Under such circumstances, the defendant could not be said to
have acted in a "wrongful" manner. Instead, he is said to have
been pursuing a "claim of right."
. . . In this case, the defendant's alleged use of a threat was not
"wrongful" and the government has failed to carry its burden of
proof if the defendant was acting under a "claim of right." He was
acting under a claim of right if he was acting on behalf of, or as
the agent of, Melissa Harbour; he had a sincere and honest belief,
even if mistaken, that Ms. Harbour had a valid claim against Mr.
Engelhardt for compensation for injuries or other harm she
suffered; that is, sexual assault; and the facts the defendant
allegedly threatened to reveal to the police about Mr. Engelhardt
were solely related to that valid claim for compensation for sexual
assault.

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 With regard to Ghalashahi's Motion for Acquittal

submitted at the close of the government's case-in-chief, the

district court commented that the government had presented little

evidence on what exactly transpired between Harbour and Engelhardt

during the sexual encounter. The court advised the government that

it had "to demonstrate that there is some evidence in this case

from which the jury can find that [Ghalashahi] threatened to report

Engelhardt for a crime, and the crime was not related to a claim of

right." The court continued, "Here the crime is assault of some

kind. So you have to say the jury could find in this case that

this defendant did not have a basis to reasonably believe than an

assault of some kind had taken place when he made the threat to

report [Engelhardt] for the crime of assault."

Though the district court may have thought that the

government's case-in-chief was not the strongest of cases, it also

recognized the standard of review for Rule 29 motions and the

inappropriateness of a judgment of acquittal, particularly with

regard to the claim of right defense:

I think the weakness you have, Mr. Norkunas
[Ghalashahi's trial counsel], right now is
Engelhardt says [the alleged rape] didn't
happen. If the jury believes it didn't
happen, they can infer that Ms. Harbour darn
well knew it didn't happen. I agree it's kind
of a leap next to infer that Ghalashahi
therefore knew it didn't happen, but that
coupled with the badges of fraud that [the
government] is identifying, I suppose there
are sufficient badges of fraud here, indicia
of fraud, that coupled with Engelhardt's

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 testimony, that they probably could find
beyond a reasonable doubt that he did not have
genuine belief in the legitimacy of the claim
he was advancing.

It was along these same lines that the district court

later denied Ghalashahi's Rule 29 motion. And indeed, the

government submitted sufficient evidence from which a reasonable

jury could find Ghalashahi guilty of the crimes with which he was

charged. The evidence was also sufficient to rebut his claim of

right defense. First, the government presented evidence that the

sexual encounter between Engelhardt and Harbour was consensual, and

hence lawful. Engelhardt testified that Engelhardt and Harbour

engaged in a consensual sexual encounter during which Harbour was

conscious and provided him with a condom. Upon being shown

photographs of bruises on Harbour's elbow and buttock, Engelhardt

denied that anything happened between him and Harbour that would

have caused the bruises. From this evidence, the jury could

conclude, at minimum, that Harbour knew that she did not have a

legitimate claim of right to the money demanded. The notion that

Ghalashahi acted as her agent in obtaining the money from

Engelhardt--which Ghalashahi has argued strenuously throughout this

litigation--provides an inferential link to Ghalashahi's own

knowledge that he had no right to the money. Without a sexual

assault, there was no possible basis for compensation.

Second, and more importantly for the purpose of

disproving Ghalashahi's claim that he sincerely and reasonably

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believed Harbour's claim that she was raped, the district court

noted the numerous "indicia of fraud" on the part of Ghalashahi

from which a jury could discredit a claim of right defense. It is

apparent that he did not even know that Engelhardt and Harbour had

engaged in a sexual encounter before Engelhardt had told him. He

made more than 130 phone calls to Engelhardt and forty-one calls to

Harbour over a twenty-one day period. He first contacted

Engelhardt using a disguised computer-generated voice. The

government also garnered admissions from Ghalashahi that he and

Harbour collaborated to threaten to make a claim of rape unless

Engelhardt paid them money, and that he kept raising the monetary

amount demanded and continually threatened to increase the amount

unless Engelhardt paid in full. In addition, Ghalashahi demanded

that the money be paid in cash and used code words to disguise the

nature of the transaction. He and Harbour split the initial

payment of $5,000; thereafter, he expected to receive at least an

additional $6,000. Only when Engelhardt agreed to pay the initial

$5,000 did Ghalashahi and Harbour want more and demand more, from

$50,000 to $150,000, and then possibly to as much as $300,000.

If Ghalashahi knew he was extorting money as an agent for

Harbour--and from his fishy behavior, the jury could conclude

exactly that--then he necessarily knew that he had no lawful claim

to it. Overall, Ghalashahi's conduct during his "negotiations"

with Engelhardt belies his claim of sincerity or reasonableness in

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believing that the money he demanded was rightfully his and

Harbour's. None of the government's evidence compels a sole

rational conclusion in favor of Ghalashahi. Because the

government's evidence permits a jury to find otherwise, he is not

entitled to a judgment of acquittal under Rule 29.

During oral argument on appeal (but not in its brief),

the government asked us to provide guidance on the applicability of

the claim of right defense to an § 875 prosecution such as this,

where the alleged extortionate threat is an accusation of criminal

conduct. Specifically, the government suggested that threats to

accuse a person of a crime are explicitly prohibited by the statute

and are inherently wrongful. Whether to permit a claim of right

defense in such a situation is an issue of first impression in this

court. As the parties neither presented the issue squarely nor

meaningfully argued it to us, we need not address it. See Grella

v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st Cir. 1994). More

importantly, resolution of the issue would not change the result in

this case. Hence, assuming without deciding that the claim of

right defense applies to this case, the district court's

reservation and denial of Ghalashahi's Rule 29 motion was proper.

Accordingly, we affirm.

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