                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUL 31 2000
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                        No. 99-2355
          v.                                    (D. Ct. No. CR-99-309-BB)
                                                        (D. N. Mex.)
 ROBERT MUOIO,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and BRORBY, Circuit Judges.


      Defendant Robert Muoio appeals his conviction and sentence. We exercise

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and affirm.



                                        I.

      Defendant won a New Mexico state suit against several realtors in 1993.

The realtors appealed. During settlement talks pending the appeal, defendant’s

counsel discovered that the realtors had made misrepresentations in their


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
interrogatory answers. The realtors agreed to settle the suit and pay defendant

damages significantly in excess of the amount awarded him at trial. In addition,

the parties agreed not to disclose the settlement terms or make any derogatory

statements about each other.

      After the settlement, defendant discovered additional facts that he believed

entitled him to a larger award. He then attempted to renegotiate the terms of the

agreement. When his demands went unmet, defendant threatened to report the

realtors to the New Mexico State Realty Board and report their attorney to the

state bar. Eventually, he carried out these threats and made disparaging

statements about the realtors to their business associates.

      The realtors filed suit against defendant in the U.S. District Court for the

District of New Mexico, claiming breach of the settlement agreement and

intentional infliction of emotional distress. They sought injunctive relief and

damages. The district judge granted the realtors’ summary judgment motions and,

with the parties’ consent, referred the case to a magistrate judge for a

determination of damages. On January 11, 1996, the magistrate judge

permanently enjoined defendant from further violating the settlement agreement

and ordered him to pay the realtors $160,000 in damages.

      At some point during the realtors’ suit against him, defendant left New

Mexico. After the suit ended, he became increasingly dissatisfied with the


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outcome of the litigation. Defendant believed that the realtors and their lawyer

had committed perjury during his state suit against them, and that the district and

magistrate judges had a duty to initiate disciplinary action against the alleged

perjurers. Defendant also discovered what he believed to be additional evidence

of the realtors’ perjury.

      In early 1999, defendant traveled to Albuquerque, New Mexico, where the

district and magistrate judges reside. He then mailed a letter to both judges,

demanding, inter alia, that they reverse the $160,000 judgment against him. In

the letter, defendant threatened to ruin the judges’ reputations and subject them to

a public citizen’s arrest if his demands were not met. He also enclosed a flyer

with the letter and threatened to distribute it to the public. The flyer accused the

district judge of being involved in a nationwide conspiracy to cover up perjury.

Moreover, the flyer disclosed the district judge’s work phone number and home

address and his wife’s telephone numbers and work address.

      After defendant mailed the letter, he contacted both the district judge and

the magistrate judge by telephone. In his conversations with the district judge,

defendant demanded that the district judge (1) file complaints with the Realtors’

Association of New Mexico and the state bar, (2) publicly expose the misconduct

of the realtors and their lawyer in a letter to the editor of a local newspaper, (3)

throw out the $160,000 judgment against him, and (4) enter a permanent


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injunction against the realtors. Defendant again threatened to ruin the judges’

reputations if his demands were not met.

      Federal agents located and arrested defendant during one of his telephone

calls to the district judge. A jury convicted him of one count of mailing

threatening communications in violation of 18 U.S.C. § 876, and the trial judge

sentenced him to twenty-four months in prison and one year of supervised release.



                                           II.

                                           A.

      Defendant argues that we should reverse his conviction because it is based

on conduct which is protected by the First Amendment to the U.S. Constitution.

Title 18 U.S.C. § 876 provides that

      [w]hoever, with intent to extort from any person any money or other thing
      of value, knowingly . . . causes to be delivered . . . any communication . . .
      containing any threat to injure the property or reputation of the addressee or
      of another . . . or any threat to accuse the addressee or any other person of a
      crime, shall be fined under this title or imprisoned not more than two years,
      or both.

Defendant maintains that he did not threaten the district and magistrate judges in

order to extort the reversal of the $160,000 judgment against him. He claims that

he merely sought an investigation of the alleged perjury in his state lawsuit and

that he cannot be prosecuted for this type of speech because it is protected by the

First Amendment.

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      Defendant’s argument amounts to a challenge to the sufficiency of the

evidence supporting the jury’s verdict.

      [I]n reviewing the sufficiency of the evidence to support a jury verdict,
      this court must review the record de novo and ask only whether taking the
      evidence – both direct and circumstantial, together with the reasonable
      inferences to be drawn therefrom – in the light most favorable to the
      government, a reasonable jury could find the defendant guilty beyond a
      reasonable doubt.

United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999). We hold that

there was sufficient evidence for a jury to find beyond a reasonable doubt that

defendant attempted to extort the reversal of the $160,000 judgment against him

from the district and magistrate judges. Defendant traveled to the city where the

judges lived in order to contact them. In his letter, defendant stated that an

honest judge would reverse the judgment. Over the telephone, defendant insisted

that the district judge could throw out the judgment. Defendant also threatened to

ruin the judges’ reputations if his demands were not met and made it clear that he

knew where the district judge and his wife lived and worked.

      Under § 876, extortionate threats made for private pecuniary gain are not

protected by the First Amendment, even if they are accompanied by protected

speech. See United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir. 1988)

(“Because [§ 876] is limited to extortionate threats, it does not regulate speech

relating to social or political conflict.”); see also United States v. Viefhaus, 168

F.3d 392, 396 (10th Cir. 1999) (“The fact that a specific threat accompanies pure

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political speech does not shield a defendant from culpability.”); United States v.

Daughenbaugh, 49 F.3d 171, 174 (5th Cir. 1995) (“The political rhetoric

accompanying the threats furnishes no constitutional shield.”); United States v.

Bellrichard, 994 F.2d 1318, 1322 (8th Cir. 1993) (“[A] person may not escape

prosecution for uttering threatening language merely by combining the threatening

language with [mention of] issues of public concern.”). Because there was

sufficient evidence for a jury to find that defendant violated § 876, his speech is

not protected by the First Amendment.

                                          B.

      Defendant argues that the sentencing court erred when it increased his base

offense level by seven points pursuant to U.S. Sentencing Guidelines Manual

(“U.S.S.G.”) § 2B3.3(b)(1) (1998). We review the district court’s factual findings

at sentencing for clear error and its interpretation of the sentencing guidelines de

novo. United States v. Cerrato-Reyes, 176 F.3d 1253, 1263 (10th Cir. 1999).

      U.S.S.G. § 2B3.3(a) expressly applies to “Blackmail and Similar Forms of

Extortion,” and provides for a base offense level of nine points. The guideline

further states that “[i]f the greater of the amount obtained or demanded exceeded

$2,000, increase by the corresponding number of levels from the table in

§ 2F1.1.” Id. § 2B3.3(b)(1). The jury found that defendant attempted to extort

the reversal of a $160,000 judgment in violation of 18 U.S.C. § 876. Guideline


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2F1.1 requires the sentencing court to increase a defendant’s base offense level by

seven points if the amount demanded exceeds $120,000 and is not more than

$200,000. See U.S.S.G. § 2F1.1(b)(1)(H), (I). Accordingly, the sentencing court

added seven points to defendant’s base offense level. We find no factual or

interpretive error in this straight-forward application of the guidelines.

      AFFIRMED.

                                        ENTERED FOR THE COURT,


                                        Deanell Reece Tacha
                                        Circuit Judge




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