          United States Court of Appeals
                     For the First Circuit


No. 13-2279

                         UNITED STATES,

                           Appellee,

                               v.

                         JOHN ANALETTO,

                     Defendant, Appellant.


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

       [Hon. George A. O'Toole, Jr., U.S. District Judge]


                             Before

                  Kayatta, Stahl, and Barron,
                        Circuit Judges.


     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.


                        December 9, 2015
            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.

                                     I.

            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.


                                 - 2 -
T.B., 511 U.S. 127, 129 (1994) (holding that "gender, like race,

is   an      unconstitutional         proxy    for   juror   competence      and

impartiality"); Batson v. Kentucky, 476 U.S. 79, 85-86 (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.

                                        II.

             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


                                       - 3 -
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 male

jurors that the prosecution had peremptorily struck or by redoing

jury selection with an entirely new venire.1

           A review of the record shows, however, that Analetto's

challenge to the District Court's Batson remedy rests on a mistaken

premise.   The District Court's finding of discrimination related

only to the prosecution's use of a peremptory challenge against

Juror Number 41 and not to the prosecution's use of peremptory

challenges against the seven other male jurors that the prosecution

had struck earlier.

           The record makes that more limited scope of the District

Court's Batson finding quite clear.    The District Court announced




     1Analetto mistakenly states in his brief that the prosecution
had seven peremptory challenges; that understanding led Analetto
to advocate in his brief for "the seating of the remaining six
afflicted jurors" when he clearly intended to refer to all
challenged male jurors.


                               - 4 -
that it was imposing a remedy only in response to the objection by

defense     counsel    to   the    prosecution's        attempt     to    peremptorily

strike Juror Number 41, who was a male.                    In finding that strike

impermissibly      gender-based,          the    District      Court     stated:     "The

objection is sustained. . . . [E]very government strike has been

a   male,    and   I    think      that     --    I'm    not    persuaded      by     the

explanation. . . . I won't allow you to strike him."

             The "explanation" to which the District Court referred

was the one that the prosecutor gave in her attempt to justify the

challenge     of   Juror    Number    41.         The   prosecutor       offered     that

explanation after defense counsel had argued that Juror Number 41

in particular was unworthy of the strike, because "[o]f all jurors,

this guy has to be the one who's worn all the hats, who's got to

be the most fair and impartial of all of them . . . ."2                               The

prosecutor responded that the prosecution took "a different view

of the impression that [the juror] gave at sidebar" and that she

was "concerned that [the juror] has had experience . . . in the

court system."

             Thus, in rejecting the prosecutor's explanation for

striking     the   juror,    the    District       Court    found      only   that    the

prosecution had failed to explain how its decision to strike Juror

Number 41 in particular was based on anything other than that


     2 Juror Number 41 had previously indicated that he had worked
as both a prosecutor and a defense lawyer.


                                          - 5 -
juror's gender.     No broader finding of gender-based discrimination

in the prosecution's use of other strikes was made.

           In lodging the Batson challenge to the prosecution's

attempt to strike Juror Number 41, Analetto's counsel did refer to

the prosecution's prior striking of seven male jurors.              But, in

context, that reference to the prosecution's prior conduct is

reasonably understood, not as a Batson challenge to each of the

prosecution's seven prior strikes of male jurors, but only as

support for the contention that gender discrimination explained

the prosecution's eighth strike given the prosecution's lack of

any other reasonable explanation for it.            See Sanchez v. Roden,

753 F.3d 279, 302 (1st Cir. 2014) ("[D]emonstrating a pattern of

strikes   against   members   of   a   cognizable    group   may   raise   an

inference of discrimination against a particular juror.").            Thus,

one cannot infer from the nature of Analetto's counsel's objection

to the striking of Juror Number 41 that the District Court, in

ruling in defense counsel's favor, must have been making the more

sweeping finding of gender-based discrimination that Analetto

contends it made.3


     3 Nor had Analetto's counsel objected earlier to any of the
prosecution's previous seven strikes of male jurors.       His only
relevant prior comment came after the prosecution exercised its
seventh peremptory challenge against a male juror.       Analetto's
counsel then asked how many challenges the prosecution had left
because he "want[ed] to know how many more men [he] should [] knock
off." But that comment alone cannot transform the later objection



                                   - 6 -
           Consistent with the conclusion that the District Court

made a narrowly tailored finding of discrimination in response to

a narrowly tailored objection, Analetto never raised any further

objection or asked for clarification after the District Court

sustained the objection and announced its limited remedy.         Rather,

when faced with a remedy that did not purport to address the

striking   of   the   seven   other    male   jurors,   defense   counsel

affirmatively stated he was content with the jury.4

           The District Court did, in addition to requiring the

seating of Juror Number 41, impose a partially prospective remedy.

That aspect of the remedy banned the prosecution from striking any

male jurors in the future while seating the eighth juror.         But the

forward-looking part of the District Court's remedy does not itself

suffice to show that the District Court must have implicitly found

that the seven previously challenged male jurors also had been

struck in violation of Batson.        In fact, the District Court at no

point asked the government for an explanation of why it had struck

any of those seven jurors.      We therefore decline to presume that

the District Court made a sweeping, but utterly unsupported,




to the exercise of a peremptory challenge against Juror Number 41
into a contention that the prosecution violated Batson in
exercising the seven other peremptory challenges against male
jurors.
     4 The government contends we must review the Batson ruling

for plain error, but Analetto's Batson challenge would fail under
even the de novo standard he asks us to apply.


                                 - 7 -
finding of discrimination as to the other seven challenged male

jurors when the record supports a far more reasonable conclusion:

the District Court found discrimination only in connection with

the striking of Juror Number 41.

             Because the District Court found discrimination only

with respect to the government's attempt to strike Juror Number

41, the District Court's chosen remedy -- "disallow[ing] the

discriminatory      challenge[]    and    resum[ing]     selection    with   the

improperly challenged jurors reinstated on the venire," while also

barring the government from challenging another male -- cannot be

said to have been inadequate under Batson.              See Batson, 476 U.S.

at 99 n.24.5      We thus reject Analetto's Batson-based challenge to

his conviction.

                                      III.

             Analetto also challenges the District Court's denial of

his   Rule   29   motion   for    acquittal    based    on   insufficiency    of

evidence.     He contends the District Court erred in denying the

motion    because    the   evidence      at   trial    did   not   support   the

government's theory that he made an implicit threat of violence

within the meaning of 18 U.S.C. § 891(7).




      5We express no view as to the propriety of the District
Court's prohibiting the prosecution from challenging male jurors
going forward.


                                      - 8 -
            Under the statute, the government must show that there

was evidence from which a rational jury could find that Analetto

made an "implicit threat . . . of violence or other criminal means

to cause harm to the person, reputation, or property" of Twombly.

See 18 U.S.C. § 891(7).    "It is the nature of the actions of the

person seeking to collect the indebtedness, not the mental state

produced in the debtor, that is the focus of the inquiry for the

jury."    United States v. Oreto, 37 F.3d 739, 752 (1st Cir. 1994)

(quoting United States v. Polizzi, 801 F.2d 1543, 1548 (9th Cir.

1986)).    But actual fear on the part of the debtor in response to

the alleged implicit threat "may be pertinent evidence."    Id.

            Our review of the District Court's denial of the motion

is de novo.     United States v. Troy, 583 F.3d 20, 24 (1st Cir.

2009).    We examine the evidence in the light most favorable to the

verdict and ask whether a rational factfinder could find guilt

beyond a reasonable doubt.     Id.   "To sustain a conviction, the

court need not conclude that only a guilty verdict appropriately

could be reached; it is enough that the finding of guilt draws its

essence from a plausible reading of the record."   United States v.

Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993).

            In this case, the implicit threat that underlies the

conviction is contained in the voicemail message that Analetto

left on Twombly's phone in connection with an attempt to collect




                                - 9 -
an illegal gambling debt.      The record transcript of the voicemail

reads as follows:

     Hi, Chris. Happy New Year. We're calling to see if we
     can recoup some of our investment. You owe 38, we'll
     round it to four, with interest. We'd appreciate it if
     you contact the right people and start doing the right
     thing or, you know, 2012 isn't going to be too good for
     you. So Happy New Year to you and your Mom and your Dad
     and your family, and we appreciate your consideration.
     Make the call. We hope to hear from you by the first of
     2012. Capice? Bye.

             Analetto   correctly   points   out    that   nowhere   in   that

voicemail did Analetto expressly "threaten to kill, maim, stab,

punch, or inflict any physical harm upon Mr. Twombly."               But the

evidence (when considered in the light most favorable to the

verdict) established that prior to leaving that message Analetto

urged another man to threaten Twombly and that Analetto volunteered

to make a threatening call himself.             And the evidence at trial

further showed (when, again, considered in the light most favorable

to the verdict) the voicemail that Analetto did leave induced fear

in its recipient, Twombly.          Thus, the evidence was sufficient,

especially given that the call was made in an attempt to collect

an illegal gambling debt, to support the finding that Analetto

knowingly conveyed an implicit threat of violence to Twombly, as

"the finding of guilt draws its essence from a plausible reading

of the record."     See id.

             Specifically,    the    evidence      at   trial   showed    the

following.


                                    - 10 -
             In leaving the message, Analetto was acting on behalf of

Robert Russo, a friend who ran an illegal gambling business.

Analetto had lent money to Russo to help keep his gambling business

afloat,     and   Analetto      had    grown   increasingly    frustrated      with

Russo's inability to collect from debtors such as Twombly (and

thus Russo's resulting inability to pay back Analetto).

             Significantly,       in    a   December   30,    2011   conversation

between Analetto and Russo, Analetto urged Russo to confront

Twombly in person about the debt.                 Analetto encouraged Russo to

dress completely in black and "[g]o to [Twombly's] house and slash

all   the   tires    on   his    car."      And    Analetto   went   on   in   that

conversation to suggest that Russo threaten to "stick a fucking

broomstick up [Twombly's] mother's cunt."                    Indeed, when Russo

expressed    doubt    about     threatening       Twombly's    mother,    Analetto

continued: "I'll make the call, and I'll say, 'Listen, the tires

were first; now we're going to fuck with your mother's house. When

a bullet comes through your mother's window' . . . ."

             Following this conversation, Analetto then asked for

Twombly's number and made the call.               Immediately after making the

call, moreover, Analetto was informed that Twombly's father was in

fact deceased.      Analetto responded to that information as follows:

"I don't give a fuck his father's dead, his fucking mother's dead.

I don't give a fuck.            That has to be done.           At minimum, he's

thinking now."


                                        - 11 -
            Thus, the fact that the precise words Analetto used in

his voicemail message did not overtly refer to any particular

violent means that would be used if Twombly did not pay the debt

is not dispositive of whether the trial evidence supported a

finding that Analetto knowingly conveyed an implicit threat of

violence.   The words Analetto used in the voicemail message in his

attempt to collect the illegal debt were certainly ominous ones.

And, when the voicemail message is considered in conjunction with

the evidence about Analetto's stated intent in making the call, a

jury could certainly infer that Analetto intended to convey an

implicit threat of violence to Twombly.

            Moreover, Twombly testified that the voicemail message

that Analetto left "obviously scared the heck out of" him.       In

particular, Twombly testified that the fact that the caller (whom

he did not recognize) had explicitly mentioned his family was

especially scary.    Twombly further testified that he viewed as

threatening Analetto's comment that 2012 would not be "too good

for" him if he did not pay.   And while "[t]he debtor's subjective

fear" is not itself an element of the offense under 18 U.S.C. §

894, the recipient's "actual fear may be pertinent evidence" that

bears on whether the defendant was knowingly conveying a violent

threat.   Oreto, 37 F.3d at 752.   Thus, the evidence of how Twombly

understood the voicemail message reinforces the reasonableness of

the jury's finding that Analetto knowingly conveyed an implicit


                               - 12 -
threat of violence to Twombly through the voicemail message.

Accordingly,     we   affirm       the    District      Court's      rejection    of

Analetto's Rule 29 motion.

                                         IV.

            Analetto's final challenge concerns the instructions

that the District Court gave the jury.                  Analetto contends that

they were fatally incomplete.             Specifically, he argues that the

District Court committed reversible error by not including two

instructions that Analetto requested.               The first was that Analetto

could not be found guilty unless the jury found that he had the

specific    intent    to   cause    fear       in   Twombly   when    leaving    the

voicemail.6    The second was that "intoxication may prevent a person

from having knowledge of their actions or the intent necessary to

cause fear" -- in other words, that intoxication can negate

"specific intent."7




     6   The full text of that requested instruction follows:

     A   defendant   knowingly   participates  in   use   of
     extortionate means when he intends by his conduct to
     install fear of harm in the debtor. Acts or statements
     are a threat if they would reasonably induce fear of
     harm in an ordinary person. A simple demand for money
     is not a threat. Fear, however, must be the intended
     result of the defendant's actions and he must make the
     threat knowing and intending it to cause fear in the
     mind of the recipient.
     7 Evidence had been introduced at trial that tended to prove

that Analetto was drinking Scotch whiskey throughout his meeting
with Russo on December 30, 2011.


                                     - 13 -
             When     considering        preserved     challenges       to    jury

instructions that involve "the interpretation of the elements of

a statutory offense," our review is de novo.                     United States v.

Pitrone, 115 F.3d 1, 4 (1st Cir. 1997).              But when such a challenge

is unpreserved, we review only for plain error.                  United States v.

Pennue, 770 F.3d 985, 989 (1st Cir. 2014).                  And the government

contends here that because Analetto registered no post-charge

objection, we should apply plain-error review.                 See United States

v. Meadows, 571 F.3d 131, 146 (1st Cir. 2009) (internal citations

and quotation marks omitted); United States v. Combs, 555 F.3d 60,

62-63 (1st Cir. 2009) (applying this standard in a case where

defendant had submitted a requested instruction but then did not

object to its exclusion after being invited to do so by the trial

judge).

             Analetto    contends       otherwise    without     addressing   this

contrary precedent.            But his challenge fails under even his

preferred standard, because any error in denying his requested

instructions was harmless.             See Neder v. United States, 527 U.S.

1, 9–10 (1999) (applying harmless-error review to a defendant's

claim that a jury instruction omitted an element of the charged

offense).

             To support his challenge to the refusal to give the

instruction regarding "specific intent to cause fear," Analetto

urges   us   to     conclude    from    statements    in   two    Second   Circuit


                                        - 14 -
decisions that a defendant cannot be convicted under § 894 unless

he specifically intended to put his victim in fear. In particular,

he relies on United States v. Sears, 544 F.2d 585, 587–88 (2d Cir.

1976), which stated in describing § 894 that "[f]ear must be the

intended result of the defendant's act," (citations, internal

quotation marks, and alterations omitted), and    United States v.

Lombardozzi, 491 F.3d 61, 70–71 (2d Cir. 2007), which stated that,

under § 894, "[t]he government had to establish that, in collecting

the loans, [the defendant] intended, as the result of his actions,

to cause [the victim] to fear he would suffer harm to his person,

reputation, or property."

           We need not decide whether Analetto is right to read

this out-of-circuit precedent as he does, let alone whether we

would adopt that view as the law of our circuit.       And that is

because, on the facts of this case and in the context of the

instructions that the District Court did give, it is simply not

plausible that Analetto "knowingly" made an implicit threat of

violence to Twombly without also specifically intending to cause

fear by doing so.

           A threat of violence typically induces fear.   Analetto

called Twombly without any basis on which to believe Twombly's

reaction to a threat of violence would be anything other than

typical.   In fact, the evidence at trial showed that Analetto and

Twombly had no prior relationship of any kind before Analetto


                              - 15 -
called him on December 30, 2011.            And so there was no evidence to

suggest that Analetto's threat -- if knowingly made, as the jury

found in convicting -- was not aimed at causing the typical fear-

inducing result.

           Thus, there is no basis for concluding that Analetto was

prejudiced by the District Court's refusal to give the requested

instruction,     even   assuming     that     §   894   requires   proof   of   a

defendant's specific intent to cause fear.              Moreover, Analetto has

not demonstrated -- or even attempted to demonstrate -- how or why

the omission of the requested instruction concerning a specific

intent to cause fear was in fact prejudicial in this case.                      In

consequence, we reject Analetto's challenge.

           Analetto further argues that the District Court should

have instructed the jury that voluntary intoxication can negate a

specific intent element of a crime.               See United States v. Burns,

15 F.3d 211, 218 (1st Cir. 1994); United States v. Sewell, 252

F.3d 647, 650 (2d Cir. 2001).        The District Court declined to give

an instruction on intoxication on the basis of its conclusion that

§ 894 was "not a specific intent crime."                But even assuming that

the "specific intent to cause fear" is an element of the crime

proscribed by § 894, Analetto also cannot show prejudice from the

omission of an instruction about intoxication.

           The     evidence    of   Analetto's      intoxication,    which    the

District   Court    allowed,    included      testimony    that    Analetto   was


                                     - 16 -
drinking Scotch whiskey during the meeting with Russo on December

30 that led to Analetto's call to Twombly.             The recording of the

meeting provides no support for concluding that Analetto, as a

result of intoxication or otherwise, displayed confusion as to who

Twombly was or whether he had a previous relationship with him.

At   all   times,   Analetto   displayed   a   clear    focus   on   pursuing

Twombly's debt to Russo.       Indeed, Analetto even noted that he was

calling Russo on an "untraceable Walmart phone," indicating that

Analetto explicitly recognized that Twombly would not know who had

left the voicemail message.         As a result, the trial evidence

provides no basis from which we could conclude that the jury would

have found that Analetto's intoxication led him to believe that a

threat of violence would not have the predictable result of causing

fear in Twombly.8      We thus conclude that even on the doubtful

assumption that the District Court erred in omitting an instruction

on intoxication, that error was harmless.

                                    V.

            For the reasons set forth above, we affirm Analetto's

conviction.




      8We note that Analetto does not argue that an intoxication
instruction would have been relevant to the jury's determination
whether Analetto knowingly made a threat of violence to Twombly.


                                  - 17 -
