concurring and dissenting:
“The defendant before you is an innocent man.” That claim, rarely heard in a court of appeals and still more rarely sustained, compels the attention of the judge. All our provisions for appeal, our careful scrutiny of the record, our hearing of argument, our conferencing and analysis are designed to prevent just such a perversion of the criminal process as the infliction of punishment upon an innocent person. It is not our way to imprison a defendant because we do not like him or find his conduct worthy of disapproval. If he is to be stamped a felon by federal law, he must have committed a federal crime. If he has not, he is innocent. Such Marsh contends he is. Such Marsh should be found to be.
Marsh was charged with three crimes, of two of which he was acquitted by the jury: extortion and attempted extortion on October 7,1991 by threatening to kill Doe, and extortion and attempted extortion on October 9, 1991 by threatening to kill Doe. He was convicted of extortion and attempted extortion on September 4, 1991 by “wrongfully threatened fear of economic loss” to Doe. This court now finds the evidence insufficient to convict him of extortion on September 4.
I concur in this conclusion and elaborate on it as follows: To obtain a conviction of extortion by threat of economic loss the government had to prove that Doe had an economic loss he could sustain. No evidence was presented that Doe was actively in business in September 1991. Doe was 79 years of age. His business had evaporated with a change in public feeling about the taste he catered to. He had a telephone with an answering machine. In 1991 he received no business calls upon it. He had obtained a part-time job with a fraternal organization to support himself, and he borrowed from his relatives. There is no evidence that he had any customers to lose. By Doe’s own testimony his only work now was “office work,” not selling a product.
It may be asked, Why, then, did Marsh refer to the St. Francis and the “Thurman”? *1505The answer, it may be suggested, was habit. Marsh and Doe were playing an old game, as will be more fully discussed below. Whatever Marsh’s thoughts, he could not have been guilty of extortion if the underlying facts made the crime impossible. A man is not guilty of murder if he assaults a corpse. Marsh was not guilty of economic extortion if he threatened a defunct business.
Did Marsh even attempt to threaten the dead business? Given that Marsh knew a good deal about Doe and his affairs, it seems unlikely that he did, but the majority, holding Marsh guilty of an attempt, finds that a reasonable juror could have found that he did make this attempt. To reach this conclusion, one must conclude that there was presented to the jury evidence establishing beyond a reasonable doubt that Marsh took a step toward making an economic threat and that he had the intention of creating fear in Doe by making the economic threat.
As an initial proposition there is considerable difficulty in reaching this conclusion because the evidence that Marsh attempted extortion on September 4 is the same evidence that he did commit extortion on September 4, viz., a single sentence in a stream of messages left on a telephone answering machine. If this single sentence did not constitute a threat of economic loss, could it constitute an attempt to threaten economic loss? If Marsh lacked the requisite intent to commit extortion, could he have had the requisite intent to attempt extortion?
The law of attempt has developed in connection with physical crimes like bank robbery. The man with a gun who trips as he enters a bank may readily be found to have been in the course of an attempt upon the bank. Extortion, in contrast, is a crime committed by words. When the words are not coercive enough to create fear, it is hard to understand how they nonetheless were an attempt at extortion. The court notes that Doe was never asked if Marsh’s message made him fear economic harm. Hence, without any evidence at all of the effect of the communication upon the person it was intended for, the jury was supposed to assess the intentions of the message-sender. To make that determination in such a vacuum was very difficult to do without a reasonable doubt about the message’s meaning.
Beyond these difficulties, there are two further obstacles to any rational juror concluding that Marsh was attempting extortion:
First, Marsh’s reference to one or two hotels could not have been an attempt to instill fear of economic loss even if (as was never shown) the hotels had still been active customers of Doe. It is a matter of common knowledge that a gay life style is accepted in public office in San Francisco. Marsh could not have believed that Doe, a former salesman wise in the ways of the world, would think hotels doing business with the public in San Francisco would have discontinued business with Doe because he had a male friend. It is unproven that Marsh would have thought that Doe would believe that he could disrupt the.business relations of Doe, if any, by stating on the telephone to an unknown hotel employee that he, Marsh, was Doe’s close friend, had twenty-four years ago sold sex to him, and had a criminal record. Doe’s vague apprehensions of what Marsh might say certainly reflected the embarrassment of an old man brought up in an era when homosexual practices were kept quiet. Playing on Doe’s embarrassment and anxiety does not amount to threatening fear of economic loss.
Second, no rational trier of fact could have understood the single sentence that is now made the basis of Marsh’s conviction as standing alone without context. The immediate context is provided by the three messages left on Doe’s answering machine on September 4. These messages were as follows: The first message said, “Please have a hundred dollars down here in 15 minutes. Or I’ll be ... on my way to San Francisco. Uh, this is no ... game and no joke right now_this is real serious. I had a gun to my head.” .The second message, left six minutes later, said, “I’ll break into your place_ I’ll find a way in. Now second of all, um, I’ll be calling the Thurman Hotel ... and, uh, St. Francis ...” The message continued, “[I]f I lose my life, it’s on your conscience.” The third message, sent three hours later, said, “Doe, I’m sorry for being an asshole this morning, would you please do *1506that for me Doe? Sorry for being an asshole. Could you please do that for me?”
No one supposes that it is • reasonable to break a phrase out of a sentence, or a sentence out of a paragraph, and quote the isolated words without reference to their context. To isolate a single line from a flow of continuous communications is like taking a sentence out of the paragraph that qualifies it. No trier of fact could rationally understand this single sentence without reference to what precedes and follows it. The communications of September 4 show that Marsh was bluffing at all times. He said he had a gun at his head, that it was no game and no joke, but he knew Doe would not believe he would kill himself in fifteen minutes if he didn’t get the money. The last communication of the day contains an explicit acknowledgment of the silliness of his earlier messages. In the context of the answering machine tape, the single sentence is not a threat.
The larger context of the long relationship of Marsh and Doe, and Doe’s method of keeping Marsh dependent upon him, is also essential to an understanding of what the communication of September 4 meant. No rational trier of fact could ignore this larger context or, taking it into account, find that for the first and only time in a twenty-four-year relationship Marsh had attempted to threaten with economic harm the man who viewed him as a friend, nuisance, beneficiary, and co-dependent. The facts of that relationship as they emerged at trial, always considered from the standpoint most favorable to the government, were as follows:
Doe met Marsh twenty-four years before the trial in Los Angeles, when Doe responded to a newspaper advertisement for male models. Doe then engaged in a sexual relationship with Marsh, paying him money for prostitution. The transaction was repeated the next two or three times Marsh had contact with Doe. Thereafter a friendship developed between Doe and Marsh and they saw each other three or four times a year, usually for a period of two to five days. These occasions were marked by a sexual relation and, in addition, Doe enjoyed Marsh’s personality. He considered Marsh a “very good friend.”
After the initial occasions on which Doe paid money for sex, he did not specifically compensate Marsh in exchange for sex but, over the years, Marsh “consistently asked for money.” Doe was “glad to help him out.” To the question asked by the government, “If he asked, you would send him some money?”, the response was affirmative. For a period of several months Doe also employed Marsh in his business. In Doe’s opinion, Marsh was financially dependent on Doe.
The pattern of giving by Doe to Marsh was peculiar. Money was dribbled in small amounts by Western Union. The method chosen by Doe incurred substantial transaction expenses in order to send small amounts. The following transfers by Doe to Marsh were introduced at trial:
April 5, 1991 $100
April 5, 1991 $ 35
April 5, 1991 $145
April 5, 1991 $ 45
April 5, 1991 $ 65
April 5, 1991 $ 65
April 5, 1991 $ 60
April 5, 1991 $ 50
April 5, 1991 $ 45
There are hundreds of similar transfers from Doe to Marsh, continuing into the period of the alleged extortion. The first transfers to Marsh after the messages of September 4, 1991 are as follows:
September 13, 1991 $85
September 13, 1991 $85
September 13, 1991 $65
Similar multiple transfers to Marsh by Doe were made each day on September 14,15,16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and October 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,14, 15, 16, 17, 18. Not a single one of these transfers of money were proved to be involuntary, extorted, or in response to a threat of economic loss.
Doe’s telephone played an important part in the Doe-Marsh relationship in at least the last several years. For three and one-half years preceding the events in the case they had not seen each other. Doe lived in San Francisco, Marsh in Los Angeles. They stayed in touch by phone. The phone was the phone in Doe’s apartment. It was his *1507only phone. The person who called collect— the only person as far as the evidence shows — was Marsh. Doe maintained the phone, at least in part, to talk to Marsh and respond to his requests for money.
The regular pattern was for Marsh to call collect. If Doe was not at home, the machine took the message, and Doe returned the call to the number left by Marsh. Normally the number was that of a pay telephone in Los Angeles. Doe’s telephone bill for the first part of 1991 shows over a hundred calls made by him to pay phones in Los Angeles. The calls were made to Marsh. They were made, as far as all the evidence goes, voluntarily by Doe.
In the spring of 1991, when Doe’s business had fallen away, Marsh’s requests for money did not stop, and Doe continued to meet them. As a consequence, Doe’s bills were not paid. Doe’s niece was aware that her uncle had been giving Marsh money for several years and advised him to discontinue paying Marsh. She took over the paying of her uncle’s bills because she knew if she gave the money to him he would send it to Marsh.
During 1991, while Doe never saw Marsh, he continued in close telephone contact, typically calling Los Angeles and accepting collect calls from Marsh on his San Francisco telephone. Up until the beginning of September 1991 Doe had sent Marsh $24,000 in 1991 alone. None of this large sum was shown to have been sent in response to any threat of economic loss.
On September 1,1991 Doe cut his wrists in a suicide attempt and was hospitalized. To the question asked by the government as to what had led him to the attempt, Doe replied, “I was all out of money.” Doe could no longer maintain the contact with Marsh by giving him money. His desperation, for all that appears, was emotional.
As a consequence of his hospitalization his niece and nephew-in-law contacted the FBI. The FBI thereafter monitored the messages recorded on Doe’s answering machine. Without the intervention of his relatives Doe would never have taped Marsh or have become a witness against Marsh. Without their intervention, Doe was content to cultivate Marsh’s calls, dole out money to him, and accept his whining and abuse. Say the relationship was unwholesome if one wishes to enter upon a moral judgment. The relation was not criminal. A single sentence blurted out in a single telephone message did not make it so, nor did the sentence constitute a crime in itself.
The Excluded Evidence
Marsh proffered the testimony of Dr. Ar-valea Nelson, an experienced psychologist, to show that Doe suffered “from a dependent personality disorder ... a co-dependent type relationship in which both members were getting something out of the relationship and both members were involved in the relationship voluntarily.” The government objected that such testimony would not be relevant; that the testimony would not go to an essential element of the crime. The court suggested the testimony was being offered “on the issue of the credibility of the victim;” that, in other words, Doe “could not have experienced the fear that he’s testified to.” ■ The government remarked, “That’s certainly not the proffer.” The court stated: ‘Well, I don’t see otherwise its ... use.” Marsh explained that the expert’s opinion would be that “it’s because of that relationship Mr. Doe is giving Mr. Marsh money and continues to do that.” The court accepted this explanation, saying: “The purpose of the expert testimony [is] ... to describe the relation, to show that it was because of the nature of the relationship and not because of ... fear, that the money was given.” The court then excluded the proffered testimony.
This court now holds that the evidence proffered was not relevant because to prove attempted extortion the government had only to show Marsh’s state of mind, not Doe’s. But the purpose of Marsh’s proffer was to prove the relationship, a relationship that bore on his state of mind as much as on Doe’s. If Nelson’s testimony had been admitted, it would have shown both Marsh and Doe engaged in voluntary transactions. Marsh’s words would have been interpreted in context not as extortion but as, Marsh put it, an exchange “in which both members were getting something out of the relationship.”
*1508It was error to exclude Nelson. United States v. Rahm, 993 F.2d 1405 (9th Cir.1993). Rohm is peculiarly apt because in that case, too,»the testimony of Dr. Arvalea Nelson was proffered by a criminal defendant, and the district court was found to have erroneously and prejudicially excluded it, necessitating a retrial. In Rohm, the proffer went to the defendant’s ability to recognize forged currency. Here the proffer went to an even more sensitive psychological issue, the .nature of the Marsh-Doe relationship.
A body of scientific and specialized knowledge now exists as to the kind of relation Marsh had to Doe. While no doubt there are some popular views as to its nature, it is scarcely contestable that the testimony of an expert would have been helpful in evaluating Marsh’s state of mind. For example, it is recognized by expert opinion that such a close relation creates a dyad — the two act as one — and the dynamism of a dyad is distinct from the actions of isolated individuals. A dyad constructs a narrative to explain the relationship and to absorb the negative elements that always threaten the positive side of intimacy. See Sandra L. Murray & John G. Holmes, Seeing Virtues in Faults: Negativity and the Transformation of Interpersonal Narratives in Close Relationships, 65 J. Personality & Soc.Psychol. 707, 720 (1993). That Marsh in his harsh taunts played to a side of Doe that welcomed such treatment and in no way feared or resented it could also have been illustrated by expert opinion. See William B. Swann, Jr. et al., Allure of Negative Feedback: Self-Verification Strivings Among Depressed Persons, 101 J. Abnormal Psychol. 293, 294 (1991). Expert testimony would equally have shown that the discomfort experienced by Doe at the idea of any disclosure of his secret relation to Marsh was not economic fear, nor did Marsh intend it to be, but that what Marsh teased him with was the loss of a secret precious because it was “an obsessive preoccupation,” especially dear for being a secret one. See Daniel M. Wegner et al., The Allure of Secret Relationships, 66 J. Personality & Soc.Psychol. 287, 297 (1994). That Marsh was a man, engaged in a sexual and psychical relation with another man, made his ease particularly appropriate for expert testimony. If Marsh had been a woman asking her lover for financial aid of a kind he had given her for twenty-four years, it' is difficult to imagine that she would have been indicted, let alone have been convicted and sentenced to five years of imprisonment.
Not all of the relevant scientific data is beyond dispute, see, e.g., the critique of Swann et al. by Lauren B. Allay & Alan J. Lipman, Depression and Selection of Positive and Negative Social Feedback: Motivated Preference or Cognitive Balance, 101 J. Abnormal Psychol. 316 (1991). But under the interpretation of Rule 702 of the Federal Rules of Evidence which is now established law, the testimony of an expert psychologist on these matters should have been admitted. Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. -, -, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). The district court committed error not only under Rahm but under Daubert.
The error was not harmless. It deprived Marsh of his best way of persuading the jury that his words were not threats but an old game that both he and Doe knew well. If Marsh is not to be held innocent by this court, at the very least he is entitled to a new trial.
I concur with the majority that Doe’s sentence was excessive, out of all proportion to the crime of conviction, and illegal under the Sentencing Guidelines.