APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. George A. O'Toole, Jr., U.S. District Judge.
Gary G. Pelletier, with whom Pelletier Clarke & Caley, LLC, was on brief, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before Kayatta, Stahl, and Barron, Circuit Judges.
BARRON, Circuit Judge.
In this appeal, John Analetto brings three challenges to his conviction, under 18 U.S.C. § 894, for knowingly participating in the use of extortionate means to collect or attempt to collect an extension of credit.
We reject each one of Analetto's challenges and affirm the conviction.
After a jury trial, Analetto, a former Massachusetts state trooper, was convicted of using extortionate means to attempt to collect an extension of credit -- arising out of a gambling debt -- from a man named Christopher Twombly. See 18 U.S.C. § 894 (making it a crime to " knowingly participate in any way, or conspire to do so, in the use of any extortionate means . . . to collect or attempt to collect any extension of credit" ). The prosecution put on evidence to show that Analetto had made an implicit threat of violence to Twombly in a voicemail that he left on Twombly's phone on December 30, 2011. See 18 U.S.C. § 891(7) (defining " extortionate means" as " any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person" ).
Analetto first contends that the conviction must be set aside because the District Court chose the wrong remedy for the prosecution's gender-based discrimination in the use of peremptory challenges during jury selection. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (holding that " gender, like race, is an unconstitutional proxy for juror competence and impartiality" ); Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (setting out the general rule that a defendant has " the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria" ). Analetto next contends that the conviction must be reversed because the evidence at trial was insufficient to support a finding that his voicemail message conveyed an implicit threat of violence and because the government failed to put on any other evidence that could suffice to prove that he had done so. And, finally, Analetto challenges the District Court's refusal to instruct the jury regarding whether Analetto specifically intended to cause fear in Twombly and whether Analetto was too intoxicated at the time he left the voicemail message to have had such a specific intent.
We consider Analetto's challenges in this order.
Analetto's Batson challenge targets only the remedy that the District Court used to cure the prosecution's gender-based, discriminatory use of peremptory challenges during jury selection. The District Court imposed a remedy following an objection that Analetto lodged after the prosecution attempted to use its eighth peremptory strike against a male juror (" Juror Number 41" ). That remedy was to seat Juror Number 41 and to prohibit the prosecution from further exercising peremptory strikes against male jurors. Analetto contends that remedy was too limited.
The key premise on which Analetto's challenge rests is that the District Court found the prosecution had violated Batson not only in exercising a peremptory strike against Juror Number 41, but also in using peremptory strikes against seven other male jurors earlier in the selection proceedings. From that premise, Analetto contends that the District Court was required to cure the Batson violation that it found either by seating all eight ...