United States v. DiDonna

United States Court of Appeals
For the First Circuit

No. 16-1469

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES P. DIDONNA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Howard, Chief Judge,
Selya, Circuit Judge,
and McConnell, District Judge.

Judith H. Mizner, Assistant Federal Public Defender, with
whom Federal Defender Office was on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom William D. Weinreb, Acting United States Attorney, was on
brief, for appellee.

August 2, 2017


Of the District of Rhode Island, sitting by designation.
 SELYA, Circuit Judge. In this case, the jury convicted

defendant-appellant James P. DiDonna of attempted Hobbs Act

extortion, see 18 U.S.C. § 1951(a), and attempting to collect an

extension of credit by extortionate means, see id. § 894(a). On

appeal, the defendant challenges the sufficiency of the evidence

across the board. After careful consideration, we conclude that

the evidence is sufficient to sustain the defendant's conviction

on the extortion charge. "Extension of credit," though, is a term

of art, and when that term is properly understood, the evidence is

insufficient to sustain the defendant's conviction on the

remaining charge. Accordingly, we affirm in part and reverse in

part.

I. BACKGROUND

"We rehearse the facts in the light most hospitable to

the verdict, consistent with record support." United States v.

Maldonado-García, 446 F.3d 227, 229 (1st Cir. 2006). In the

process, we draw all reasonable inferences in favor of the verdict.

See id. at 231.

Raymond Buck (Buck) and his wife, Linda, own Archer

Angus, a cattle farm in Chesterville, Maine. They raise and sell

grass-fed Maine beef. In 2009, the defendant approached the Bucks

and offered his services as a sales representative. The Bucks

initially declined his offer but, a year later, they reversed

course and joined forces with the defendant.

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 The arrangement was never reduced to writing. Yet, its

main points — with one notable exception — are undisputed. The

defendant toiled as an independent contractor, marketing Archer

Angus beef primarily to restaurants. The Bucks paid him a ten

percent commission on restaurant sales and a five percent

commission on all other sales. The record is tenebrous, though,

as to whether the defendant was entitled, upon termination of the

relationship, to commissions for future sales on accounts that he

had originated. The defendant says that he was; the Bucks say

that he was not.

Once affiliated with Archer Angus, the defendant sold

the farm's beef to some of Boston's best-known restaurants. He

also developed a relationship with a premium grocer. Despite these

added sales, Archer Angus struggled: the farm had cash-flow

problems, exacerbated by the fact that some of its new customers

did not pay on time. Paradoxically, Archer Angus sometimes had to

scramble to fill existing orders. To smooth out this wrinkle,

Archer Angus (heedless of its boast that its cattle were grass-

fed and locally raised) began purchasing some beef from a farm in

Pennsylvania (a farm that, for aught that appears, gave Archer

Angus no assurances about the cows' diet).

By the summer of 2012, Buck's disappointment with Archer

Angus's sales trends reached critical mass. Around the same time,

Buck was experiencing difficulty in contacting the defendant. On

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July 17, 2012, Buck sent the defendant an e-mail, unilaterally

terminating the relationship. The defendant did not reply for

almost five months. When he did respond — in a December 6, 2012

e-mail — he demanded his unpaid commissions. After Buck

transmitted an initial accounting, the defendant sought recompense

in January of 2013 for specific sales that he claimed had been

omitted from the accounting. He made no mention of remuneration

for any sales occurring after July.

Buck agreed with the defendant's proposed adjustments

and submitted a revised payout figure ($16,713.06). That sum was

significant in terms of Archer Angus's cash flow, and the Bucks

had to borrow the money. When the funds were secured, they put

them in escrow with their attorney, Thomas Peters, and notified

the defendant. Once again, the defendant did not respond.

In May of 2013, Peters wrote to the defendant, reminding

him that he still had the money in escrow. On June 14, the

defendant telephoned Peters and said that he wanted more money.

He added that if his demand was not satisfied, he would either

embarrass Archer Angus or put the farm out of business altogether.

Peters — who viewed himself mainly as an escrow agent — referred

the defendant to Buck. Peters thereafter informed Buck about the

defendant's statements.

Roughly a month later, the defendant called Peters

again. In that call (which took place on July 23), the defendant

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advised Peters that he had not heard from Buck and that he

continued to expect remuneration for his silence.

On August 13, the defendant and Buck finally spoke. Buck

recorded the call. After exchanging brief pleasantries, the

defendant explained what lay behind his demand for more money:

"I've come across information in detail that if exposed would be

disastrous for the future of your business." The defendant warned:

"[T]he information that I have [] is basically information that

will be exposed[.] I have information, attorneys lined up in

multiple states. I have boards. I have agencies. I have

commissions. . . . In addition to [] probably [ninety] percent of

your clients that will know about this, in addition to media

outlets." He then asserted that Buck was "misrepresenting what

[he was] selling" — an apparent reference to the fact that not all

Archer Angus beef was from Maine and that the animals' diet was

unknown. The defendant refused to quantify his demand for more

money, instead pressing Buck to make him an offer. Some

representative statements follow:

 "I'm looking for you to look at the big picture
of this and what this is really worth to you."

 "[Y]ou need to ask what the future of your
business is worth to you, because it will all
be gone. And whatever . . . you misrepresented
to your clients, . . . you're gonna be on the
hook for it."

 "I'm looking to you to sit down, take a step
back, it's not a time to be emotional, or

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 stubborn, or defensive. It's not a time to
procrastinate and it's certainly not a time to
be cheap."

The defendant told Buck that he was "giving [him] one week" to

propose a settlement amount. When Buck stated that he expected

the defendant to name a figure, the defendant demurred, saying

"[Y]ou're gonna risk being exposed in a week! It's that simple.

And if you wanna roll the dice on that, if you wanna call my bluff,

knock yourself out, cause everything you have is gonna be gone."

At that juncture, Buck accused the defendant of blackmail. The

defendant retorted, saying "This is not blackmail, because it's

the truth and you know it's the truth."

During this call, the defendant also asked that Buck

turn over "the money that we agreed to in January" within a week

(an apparent reference to the sum held in escrow, which the

protagonists already had agreed was due to the defendant for pre-

termination commissions). He also claimed, without elaboration,

that additional compensation was due to him in the wake of the

terminated relationship. Buck countered that Archer Angus's

records showed that the defendant was not owed any commissions

beyond the previously agreed amount. The defendant rejoined,

cautioning that Buck was risking "being exposed."

The August 13 call led Buck and Peters to contact the

Federal Bureau of Investigation (FBI). Following a plan developed

as a result of that contact, Peters reached out to the defendant

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by e-mail on August 21, with an eye toward setting up another

telephone call. In that e-mail, Peters noted that he saw "the

wages issue" and "the other issue" as "two separate issues." The

defendant did not disavow this characterization: in an August 22

e-mail, he demanded payment of the previously agreed amount,

together with some further "settlement offer made by your client."

He set a deadline of August 27 for both the agreed-upon payment

and the further offer. He went on to add that "I have identified

thousands and thousands of dollars that I have not been paid on

(that can be proven) and which is not included in the current

amount that you have in escrow."

On September 3, Peters called the defendant. Buck was

present but did not speak. During this call (which was recorded),

Peters again summarized the defendant's claims as raising "two

issues": the "back money" owed to the defendant for unpaid pre-

termination commissions and a payment in an as-yet-unspecified

amount. In contrast to the payment for past commissions (which

would be made by check), Peters suggested that the second issue be

settled by means of a cash payment, without any concomitant

paperwork. The defendant expressed some reluctance to accept cash

with no documentation, but Peters, citing the transaction's

"probabl[e] illegal[ity]," did not budge.

Two weeks later, Peters, Buck, and the defendant took

part in another call designed to complete their negotiations. In

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this call (which also was recorded), the defendant characterized

his demand for more money as a "business development settlement."

The parties eventually agreed to a $40,000 cash payment. The

following colloquy ensued:

Buck: I have to get this money[,] Jim. How
long are you gonna give me to raise it[?]

Defendant: You want to . . . do it in
installments, . . . I'm fine with that.

Buck: No, we'll settle out the whole thing and
you'll get your money and go away. I'm tired
of friggin with you.

After a brief discussion as to the place and manner of delivery,

the protagonists returned to the question of timing:

Buck: So when?

Defendant: Is it . . . next week[?]

Buck: Need a day and time. I've gotta have it
here.

Defendant: Now that's uh, how does [Peters's]
schedule look?

Peters: I don't need to be involved. . . . As
long as [Buck's] got enough time to get it
together, it doesn't matter to me.

Buck: Week from today sound good to you? Same
time, same place?

Defendant: [L]et's do Wednesday.

Peters: What's the date? . . .

Defendant: [I]s it the 25th?

Peters: [L]et me look. Next Wednesday[.]

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 Defendant: 25th. Wednesday the 25th.

At the conclusion of this September 17 call, the participants

agreed that Buck would leave the additional money at Peters's

office in Lewiston, Maine for pickup.

The date and place of the pickup were subsequently

changed, apparently at the instance of the FBI. Although the

record is murky on this point, it seems that the FBI made an

"operational decision" so that it could "better control" the

transaction and satisfy its specialized planning requirements.

The net result was that the pickup was rescheduled to take place

at a rest stop on the Massachusetts Turnpike on October 3, 2013.

On October 3, an undercover FBI agent, posing as a

courier, met the defendant at the rest stop. The defendant was

accompanied by Joseph Parmakian, a retired law enforcement

officer. The agent turned over an envelope, supposedly containing

the cash but actually containing scrap paper. The defendant took

the envelope, and he and Parmakian left the rest stop.

In due season, a federal grand jury sitting in the

District of Massachusetts charged the defendant, in a superseding

indictment, with one count of attempted extortion in violation of

18 U.S.C. § 1951(a) (count one) and one count of use of

extortionate means to collect and attempt to collect an extension

of credit in violation of 18 U.S.C. § 894(a) (count two). A five-

day jury trial eventually ensued. At the close of all the

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evidence, the defendant moved for judgment of acquittal. See Fed.

R. Crim. P. 29. The district court denied the motion, and the

jury convicted the defendant on both counts. The court sentenced

the defendant to concurrent incarcerative terms of one year and

one day, plus two years of supervised release. This timely appeal

followed.

II. ANALYSIS

The defendant challenges the sufficiency of the evidence

regarding both counts of conviction. "[W]e review the denial of

his motion for judgment of acquittal de novo." See United States

v. George, 841 F.3d 55, 61 (1st Cir. 2016). In that endeavor, we

ask "whether, after assaying all the evidence in the light most

amiable to the government, and taking all reasonable inferences in

its favor, a rational factfinder could find, beyond a reasonable

doubt, that the prosecution successfully proved the essential

elements of the crime." United States v. Chiaradio, 684 F.3d 265,

281 (1st Cir. 2012) (quoting United States v. O'Brien, 14 F.3d

703, 706 (1st Cir. 1994)).

Here, the counts of conviction, though related, pose

different sufficiency questions. Consequently, we consider them

separately.

A. Hobbs Act Extortion.

We start with the defendant's conviction on count one.

This count charges a violation of 18 U.S.C. § 1951(a), which

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forbids "obstruct[ing], delay[ing], or affect[ing] commerce or the

movement of any article or commodity in commerce, by robbery or

extortion or attempt[ing] or conspir[ing] so to do." Extortion,

in turn, is defined 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." Id.

§ 1951(b)(2). Such a crime is commonly known as Hobbs Act

extortion.

In this case, the government charges that the defendant

attempted to extort money through the wrongful use of fear. "Under

the Hobbs Act, 'fear' encompasses fear of economic loss, including

the loss of business opportunities." United States v. Cruz-Arroyo,

461 F.3d 69, 74 (1st Cir. 2006). The pivotal question, then, is

whether the evidence is sufficient to prove that the defendant

wrongfully employed threats of economic ruin.1

To prove fear of economic loss, "the government must

show that the victim reasonably feared that noncompliance with the

putative extortionist's terms would result in economic loss." Id.

We think that the government has carried this burden. For his

part, Buck reasonably feared the potential for economic loss. The

substance of the defendant's statements to Buck — both those made

directly to Buck and those made to Peters on the understanding

1 The defendant does not challenge the sufficiency of the
government's proof as to the other elements of Hobbs Act extortion.

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that they would be shared with Buck — is essentially undisputed.

The defendant repeatedly threatened Buck and Buck's business

(Archer Angus) with economic harm in an effort to obtain money

from Buck (and, by extension, from Archer Angus). The record is

strewn with such threats. To select but a few examples:

 The defendant told Peters, on the

understanding that Peters would relay the comment

to Buck, that he would put Archer Angus out of

business if he was not paid more money.

 The defendant told Buck directly that he had

"information in detail that if exposed would be

disastrous for [Buck's] business."

 The defendant warned Buck that "if you wanna

call my bluff, knock yourself out, cause everything

you have is gonna be gone."

Manifestly, Buck interpreted these statements

(reasonably, we think) as a threat to wreck his business. The law

is clear that a person may not use threats of economic harm to

obtain money or property to which he has no claim of right. See

United States v. Sturm, 870 F.2d 769, 773 (1st Cir. 1989); United

States v. Kattar, 840 F.2d 118, 124 (1st Cir. 1988). The

sufficiency of the evidence of Hobbs Act extortion thus turns on

whether the defendant had a claim of right to the additional money

that he was attempting to garner.

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 We caution, though, that whether the defendant's claim

of right is legally correct is not the determinative factor. See

Sturm, 870 F.2d at 774. Rather, the government must prove, by

direct or circumstantial evidence, that the defendant "knew that

he was not legally entitled to the property that he [either]

received" or attempted to receive. Id.

The defendant argues that he believed that he was owed

the $40,000 payment in settlement of legitimate claims and that

his threats were simply a species of "hard bargaining." The

government argues that the defendant's demand had nothing to do

with the settlement of claims for sums owed in consequence of the

terminated business relationship. Instead, the government regards

the defendant's statements as an attempt to extort Buck by

demanding hush money in exchange for silence about information

that could have damaged the Bucks' business. If the government's

assessment of the defendant's statements is correct, then the

defendant had no claim of right: he could not reasonably have

thought that he had a right to any additional money.

The relative persuasiveness of these competing arguments

depends on which inferences a factfinder chooses to draw from the

raw facts. In our view, the evidence was sufficient for a rational

jury, drawing reasonable inferences in the government's favor, to

find beyond a reasonable doubt that the defendant knew that he had

no claim of right to the money demanded. We explain briefly.

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 To begin, the defendant made clear, in the earlier

conversations, that the price for his silence was an additional

payment. He also made clear the dire consequences that would ensue

if Buck turned him away empty-handed. The jury was entitled to

give the defendant's words their ordinary meaning and to treat his

demand for an additional payment, coupled with his threats of

economic harm, as extortion. See United States v. Cruzado-

Laureano, 404 F.3d 470, 482 (1st Cir. 2005).

The defendant would have us read the record differently.

He says that despite his bluster, his real intent was to secure

additional compensation that he was owed (that is, commissions on

post-termination sales to customers whom he had brought to Archer

Angus). This view of the situation has some support in the record.

It cannot be gainsaid that, during the various conversations, the

defendant made some remarks that a jury could find consistent with

his claim that he was merely seeking unpaid post-termination

commissions. For example, the defendant told Buck at one point

that he could prove that Archer Angus owed him "additional

thousands and thousands of dollars." At another point, the

defendant characterized what he was seeking as a "business

development settlement."

These allusions, though, were never accompanied by any

detail as to what actual post-termination commissions the

defendant believed that he was owed. And when Buck pressed the

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defendant to identify those commissions, the defendant retreated

to his threat of "expos[ing]" Buck and Archer Angus.

In all events, what was not said seems to buttress the

government's version of what was transpiring. The defendant never

asked Buck either for a specific sum or for compensation for

particular accounts. Instead, the defendant insisted, over and

over again, that Buck decide how much the defendant's silence was

"worth to [him]." If the defendant thought that he had been

unfairly deprived of certain commissions, the ordinary course

would have been to ask for an accounting of profits with respect

to particular customers (as the defendant did in January of 2013,

when Buck first sought to pay him his accrued pre-termination

commissions).

The defendant's conduct during the negotiation process

also gives rise to reasonable inferences that support the jury's

verdict. For one thing, when Buck pointedly accused the defendant

of blackmail, the defendant did not claim that he was owed the

money for services rendered but, rather, retorted that "it's the

truth" — an apparent reference to the accuracy of the compromising

information that the defendant had threatened to air. For another

thing, when Peters distinguished between "the wages issue" and

"the other issue," the defendant never protested that there was

only a single issue — the amount of earned compensation due to

him. And, finally, when Buck challenged the defendant to identify

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any particular commission that had not been accounted for, the

defendant deflected the question by reiterating his admonition

that he would "expose[]" Buck. Jurors are fully within their

rights to make commonsense inferences, see O'Brien, 14 F.3d at

708, and it is a commonsense inference that if the defendant was

actually seeking compensation for money legitimately owed, he

would have mentioned at some point either the amount he was owed

or the manner in which it could be computed.

Last — but not least — the jury was not bound to credit

the defendant's isolated statements regarding money owed to him.

See United States v. Jimenez-Perez, 869 F.2d 9, 12 (1st Cir. 1989)

(deeming it "apodictic that a trier of fact is not bound to accept

the self-serving stories of persons accused"). Rather, it could

have regarded those statements as self-serving attempts to gild

his criminal act with a specious veneer of legitimacy.

In the last analysis, it was for the jury to say, on

this mottled record, whether the defendant was seeking a payment

for his silence (as the government contends) or a payment for his

services (as the defendant contends). See United States v. Olbres,

61 F.3d 967, 973 (1st Cir. 1995) (explaining that a jury is free

to choose among alternative interpretations of the evidence, so

long as the jury's choice is reasonable). After all, it is the

jury's responsibility to weigh the evidence in its totality,

resolve contradictions in the facts, and gauge the credibility of

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the witnesses. See O'Brien, 14 F.3d at 707. That is precisely

what the jury did in this case.

We conclude, without serious question, that a rational

jury could have found beyond a reasonable doubt — as this jury did

— that the defendant's demands were not for unpaid post-termination

commissions but for hush money. So, too, we conclude that a

rational jury could have found beyond a reasonable doubt — as this

jury did — that the defendant wrongfully employed extortionate

threats of economic harm to ensure that his demands for money to

which he had no claim of right were satisfied. No more is exigible

to defenestrate the defendant's challenge to his Hobbs Act

conviction. As we have said, a "court of appeals ought not

disturb, on the ground of insufficient evidence, a jury verdict

that is supported by a plausible rendition of the record." United

States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992).

B. Extension of Credit.

The defendant also challenges, on sufficiency grounds,

his conviction on count two. That count charged him with violating

18 U.S.C. § 894(a), which criminalizes, as relevant here, the "use

of any extortionate means" in the collection or attempted

collection of "any extension of credit." In the defendant's view,

the evidence is insufficient to show either that he used

extortionate means or that he made any extension of credit.

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Because we agree that the evidence does not show that the defendant

made an extension of credit, we start — and stop — there.

Section 894(a) "has a broad reach." United States v.

Dzhanikyan, 808 F.3d 97, 105 (1st Cir. 2015). That reach is not

limited to conventional loans. See id. Rather, the statute

encompasses any "extension of credit," defined as "any loan [or]

agreement, tacit or express, whereby the repayment or satisfaction

of any debt or claim, whether acknowledged or disputed, valid or

invalid, and however arising, may or will be deferred." 18 U.S.C.

§ 891(1).

The key to the existence of an extension of credit is

the creditor's agreement to defer payment. See United States v.

Hoyle, 237 F.3d 1, 7 (1st Cir. 2001). In the absence of a

conventional loan, "the government must prove that the creditor

manifested an assent (even if only unilaterally and even if only

tacitly) to defer payment." Dzhanikyan, 808 F.3d at 106.

Here, the government says that the defendant extended

credit to Buck in no fewer than three instances. First, during

the August 13 telephone call, the defendant told Buck that he was

"giving [Buck] one week" to make him an offer in order to secure

his silence and one week to pay him "the money . . . agreed to in

January." Second, in his August 22 e-mail to Peters, the defendant

issued essentially the same two-part ultimatum, this time with a

deadline of August 27. Third, in their September 17 telephone

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call — after the "settlement amount" had been negotiated — the

defendant and Buck agreed that the funds ($40,000) would be

delivered eight days later.

The government's first theory need not detain us. This

theory is premised on statements made in the August 13 conversation

and the August 22 e-mail. The theory is amplified in the

government's appellate brief, which suggests that the phrasing of

the defendant's demands for the pre-termination commissions

admittedly due ($16,713.06) supports a finding that credit was

extended. But there is a rub: the government did not advance this

theory below. The indictment charged the defendant, in pertinent

part, with knowing participation "in the use of extortionate means

. . . to collect and attempt to collect an extension of credit

from [Buck], d/b/a [Archer Angus], to include $40,000.00 in U.S.

currency, and to punish [Buck] . . . for the nonrepayment thereof."

The government's arguments at trial tracked this theory of the

case: in both its opening statement and its summation, the

prosecution trained its fire exclusively on the defendant's

demands for a settlement offer and the ensuing arrangement for

payment of the settlement amount ($40,000). Consonant with the

language of the indictment and the government's professed theory

of the case, the district court's jury instructions with respect

to count two mentioned only the $40,000 settlement.

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 In dealing with criminal defendants, the government must

turn square corners. It cannot use bait-and-switch tactics,

relying on one theory of the case in the indictment and during the

trial and then — after obtaining a favorable verdict — relying on

an entirely different theory to uphold the verdict. See Dunn v.

United States, 442 U.S. 100, 106 (1979). So, too, a reviewing

court cannot affirm a criminal conviction on the basis of a theory

that was never advanced in the trial court. See Chiarella v.

United States, 445 U.S. 222, 236 (1980); see also United States v.

Boulahanis, 677 F.2d 586, 591 (7th Cir. 1982) (rejecting theory of

extension of credit that was "different" from "theory of the

extension of credit that the government actually pressed [at

trial]").

The government's second theory fails for a different

reason. That theory focuses on the defendant's demands that Buck

produce a settlement offer by certain deadlines. Although this

theory was actually argued to the jury, we think it is evident

that no rational jury could have found beyond a reasonable doubt

that those demands constituted extensions of credit. After all,

an agreement to defer repayment necessarily implies that if the

debtor were both willing and able, payment could have been made

prior to the deferral. See Hoyle, 237 F.3d at 2, 6. Otherwise,

there would be nothing to defer. Cf. United States v. Stokes, 944

F.2d 211, 215 (5th Cir. 1991) (holding that contract did not create

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extension of credit when "[n]o payment was [yet] due" under

contract). That is the fatal flaw in the government's theory.

The very nature of the defendant's demands for a settlement offer

makes pellucid that there could be no extension of credit: the

amount of the debt was undetermined and thus impossible either for

Buck to satisfy or for the defendant to defer.

This leaves the September 17 telephone call.

Considering that call in context, we do not think that the

defendant's statements and conduct, even when taken in the light

most favorable to the government, are sufficient to establish an

extension of credit.

Prior to September 17, the parties had not agreed about

whether Buck would make any payment beyond the $16,713.06

admittedly due for unpaid pre-termination commissions. In the

September 17 call, Buck and the defendant agreed to an additional

settlement of $40,000. The defendant expressed a willingness to

let Buck pay the settlement amount in installments, but Buck

declined. Instead, he focused on when the cash should be delivered

and suggested a "[w]eek from today." The defendant proposed

September 25 (one day later) as more convenient, and the parties

agreed to that date. The government argues that the eight-day

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delay between the demand for the $40,000 and the September 25

delivery date constitutes an extension of credit.2

A delay between demand and payment, without more, does

not constitute an extension of credit. In United States v.

Wallace, the Second Circuit held that even when a defendant

"tolerated a delay in payment" but did so without agreeing to defer

payment, such "impatient forbearance was no more than a reprieve

on his extortionate threats" and did not violate section 894(a).

59 F.3d 333, 340 (2d Cir. 1995). So it is here: although the

defendant agreed to a payment date that was eight days in the

future, the evidence simply does not support a reasonable inference

that he agreed to defer the debt. In this case, as in Wallace,

the delay was nothing more than a reprieve with respect to the

defendant's extortionate threats.

All of the raw facts point in this direction. Until

September 17, there was no settlement and no agreed amount. The

record makes luminously clear that, on September 17, the parties

were negotiating all the terms of the nascent settlement (including

the date for its consummation). When a meeting of the minds

finally occurred, Peters insisted that the settlement amount be

paid in cash. Since the parties were located in different states

2 While the delivery date was later changed to October 3, that
change was at the instance of the FBI. The government has not
argued that, on its theory of the case, the defendant can be held
responsible for any extension of credit beyond September 25.

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and the payment was to be made in cash, it was impossible to

complete the transaction at the time of the call. Instead, it was

necessary to schedule a mutually convenient time to wrap up the

matter. That is exactly what transpired — no more and no less.

As we have indicated, the touchstone of a section 894(a)

prosecution is whether there was an agreement to defer the payment

of a debt. See Dzhanikyan, 808 F.3d at 106; Hoyle, 237 F.3d at 7.

The existence vel non of such an agreement is necessarily context-

specific. Making such a determination "will often require a

particularized review of both the creditor's conduct and the

surrounding context." Dzhanikyan, 808 F.3d at 106-07. In this

case, the circumstances — the statements of the protagonists, the

impossibility of immediate payment, the practical problems

incident to transporting cash to another state, the need to

determine a mutually convenient time and place for the exchange,

and the shortness of the interval between the demand and the

delivery — undermine any inference that the defendant agreed to

defer payment of the debt.

Seen in context, the only reason for the brief delay was

to accommodate the logistics of payment, not to defer Buck's

obligation to pay. Mutual convenience dictated the final

arrangement. Moreover, the defendant neither said nor did anything

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to indicate that he was not "consistently mainfest[ing his] demand

for immediate payment."3 Stokes, 944 F.2d at 215.

The government's contrary argument depends on an

interpretation of section 894 that echoes the interpretation that

this court rejected in Dzhanikyan. There, we debunked the notion

that "a mere demand for payment . . . suffices to show that there

has been an agreement to defer payment and thus an 'extension of

credit.'" 808 F.3d at 106.

Practically speaking, a mere demand for payment is all

that the government has shown in the case at hand. The infirmity

of its argument is highlighted by the lack of a limiting principle:

any defendant who makes an extortionate demand and receives from

the debtor a promise of payment at a specific time, even an hour

later or a day later, would be guilty of violating section 894(a).

And this would hold true even where, as here, immediate payment

would have been either impossible or impracticable at the time the

demand was made. Such a result would, in effect, reinstate the

rule that we rejected in Dzhanikyan.

Our concerns about the sufficiency of the evidence on

count two are heightened by two other considerations. First, the

government's theory of guilt blurs the distinction between section

3 Of course, the defendant did at one point raise the
possibility of installment payments. That option, though, was
swiftly rejected by Buck, and the protagonists never revisited the
subject.

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894(a) and Hobbs Act extortion. Section 894(a) criminalizes the

collection of an extension of credit by extortionate means. Unlike

the Hobbs Act, it does not criminalize mere collection by

extortionate means of monies owed. In other words, "[s]ection 894

does not make it a crime to use extortion to collect debts, but

only to exact repayment of credit previously extended."

Boulahanis, 677 F.2d at 590.

A section 894(a) violation is distinguished from Hobbs

Act extortion based on whether there was a true "agreement to defer

payment of the debt[]." Hoyle, 237 F.3d at 7. Conflating the two

offenses would turn a blind eye to congressional intent and would

unfairly augment the government's already extensive armamentarium

of potential charges. Cf. Wallace, 59 F.3d at 339 (noting danger

of "convert[ing] every common law extortion into a federal

loansharking offense" (quoting United States v. Wallace, 856 F.

Supp. 843, 847 (S.D.N.Y. 1994))).

Second, the government's theory is at odds with the

realities of the marketplace. Say, for example, that X owns a

farm in Maine. He wishes to buy a used truck from Y, who operates

a dealership in Massachusetts. X takes a particular vehicle back

to Maine to test-drive it. He then calls Y, the two negotiate,

and they agree on a price, which is to be paid in cash. They then

set a time and place for the consummation of the transaction (that

is, for X to deliver the cash to Y), based on the practicalities

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of the situation and their mutual convenience. On the government's

theory, whatever date they may select would reflect an extension

of credit by Y, even though Y consistently manifested his demand

for payment. That may be true in some alternate universe — but it

is not true in the real world.

To sum up, the evidence, taken in the light most

flattering to the government, is sufficient to show that the

defendant attempted to extort $40,000. But that is all: on this

record, a rational jury could not conclude beyond a reasonable

doubt that the defendant manifested his assent to defer payment or

used extortionate means to "exact repayment of credit previously

extended." Boulahanis, 677 F.2d at 590. The same conversation

that established the debt also set out the payment terms, and the

defendant never agreed to defer payment past the date initially

set. It follows inexorably that the defendant's conviction on

count two must be reversed.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the defendant's conviction on count one and reverse his

conviction on count two. Because the sentences for the affirmed

and reversed convictions were for essentially the same conduct and

were to run concurrently, we see no need for resentencing on count

one. See United States v. Abreu, 952 F.2d 1458, 1472 (1st Cir.

1992); cf. United States v. Francois, 715 F.3d 21, 34 (1st Cir.

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2013) (remanding for resentencing where the vacated sentence was

"central to the district court's calculation of [the defendant's]

overall sentencing package").

Affirmed in part and reversed in part.

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