Here's what the judge proposed to say to the jury about Paul Brown and the extortion charge:
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In this case, you have heard audiotapes containing statements made by Paul Brown, one of the people whom the government alleges was a victim of extortion. Mr. Brown’s statements ordinarily would be inadmissible hearsay, but were allowed to be played because they bear on the issue of whether he experienced fear under the circumstances and to put the statements of Mr. Elgindy and others to Mr. Brown in their proper context. However, I instruct you that you cannot consider any statement that Mr. Brown made on the tapes for the truth of the matter asserted in those statements. In order words, you should not take any of Mr. Brown’s statements on the tapes as evidence that the content of that statement was true. You may consider the tapes as evidence of Mr. Brown’s state of mind and for context, but nothing more.
You may also consider the relationship between the defendant and the alleged victim in deciding whether the element of fear exists. However, a friendly relationship between the parties doesn’t mean that you can’t find that fear exists. On the other hand, you may consider the friendly nature of the relationship between the parties as bearing on the other elements of the offense, such as the defendant’s criminal intent, as well.
In addition to finding that the victim experienced fear, you must also find that his fear was reasonably felt under the circumstances.2’ This is a separate question from whether he actually felt the fear. You are to evaluate the reasonableness of his fear objectively - - that is, you must decide whether a reasonable person, under those circumstances, would also have experienced such fear.
The government must prove beyond a reasonable doubt that the victim reasonably believed two things: first, that the defendant had the power to harm the victim; and second, that the defendant would exploit that power to the victim’s detriment.22 You must also find that the defendant intended to exploit the fear of the alleged victim.23 If you find that the victim experienced fear and that he was reasonable in doing so, but that the defendant did not intend to exploit that fear, you cannot find that the defendant committed extortion.
If you decide that the defendant obtained another’s property, against his will, by the use or threat of force, violence, or fear of injury, you must then decide whether this action would effect interstate commerce in any way or degree. You must determine whether there is an actual or potential effect on commerce between any two or more states.
If you decide that there was any effect at all on interstate commerce, then that is enough to satisfy this
21 United States v. Capo, 817 F.2d 947, 951 (2d Cir. 1987) (en banc).
22 Id.
element. The effect can be minimal. For example, if a block of stock was transferred and sold on a national market, that would be a sufficient effect on interstate commerce.
If you decide that interstate commerce would potentially or probably be affected if the defendant had successfully and fully completed his actions, then the element of affecting interstate commerce is satisfied. You do not have to find that interstate commerce was actually affected. However, if the defendant has finished his actions, and done all he intended to do, and you determine there has been no effect on interstate commerce, then you cannot find the defendant guilty. You do not have to decide whether the effect on interstate commerce was harmful or beneficial to a particular business, or to commerce in general. The government satisfies its burden of proving an effect on interstate commerce if it proves beyond a reasonable doubt any effect, whether it was harmful or not.
The defendant need not have intended or anticipated an effect on interstate commerce. You may find the effect is a natural consequence of his actions. If you find that the defendant intended to take certain actions--that is, he did the
23 Id at 951.
acts charged in the indictment in order to obtain property--and you find those actions have either caused, or would probably cause, an effect on interstate commerce, then you may find the requirements of this element have been satisfied.
Adapted from Matthew Bender, ¶ 50.02; Scheidler v. National Organization for Women, Inc., -- U.S. --, 123 5. Ct. 10S7, -- L. Ed. 2d -- (2003); Stirone v. United States, 361 U.S. 212, 80 5. Ct. 270, 4 L. Ed. 2d 252 (1960) ; United States v. Daley, 564 F.2d 645 (2d Cir.), cert. denied, 435 U.S. 933 (1977); United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969), cert. denied, 397 U.S. 1021 (1970)
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