                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2005

USA v. Bruce
Precedential or Non-Precedential: Precedential

Docket No. 02-3316




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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEAL
              FOR THE THIRD CIRCUIT


                         No. 02-3316


             UNITED STATES OF AMERICA,

                              v.

                 WILLIAM R. BRUCE, III,

                                              Appellant


       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
              (D.C. Criminal No. 00-cr-00281)
             District Judge: Hon. Malcolm Muir


                    Argued May 27, 2004

BEFORE: RENDELL and COWEN, Circuit Judges and
    SCHWARZER*, District Judge

                    (Filed: April 28, 2005)




*Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by
designation.
G. Scott Gardner, Esq. (Argued)
2117 West 4 th Street
Williamsport, PA 17701

Counsel for Appellant

Theodore B. Smith, III (Argued)
Office of the United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108

John J. McCann, Esq.
Office of the United States Attorney
240 West Third Street, Suite 316
Williamsport, PA 17701

Counsel for Appellee




                           OPINION




COWEN, Circuit Judge

       William R. Bruce, III, and a co-defendant, John Cioffi
Mussare, were charged in an indictment with various drug and
extortion crimes. They were convicted of one count of
conspiring to distribute marijuana, as well as two counts of using
extortionate means to collect an extension of credit in violation
of 18 U.S.C. § 894. Bruce appeals, raising constitutional and
sufficiency of the evidence challenges to the extortion
convictions.1 We will affirm.



       1
       This appeal arose out of the same incident underlying
United States v. Mussare, 02-3301. The cases were consolidated

                                2
                                I.

       On January 21, 2000, Clinton James Taylor, Bruce, and
Mussare met at an all-night party in Williamsport, Pennsylvania.
At some point during the evening, Bruce and Mussare expressed
an interest in obtaining marijuana, and Taylor indicated that his
roommate, Jim Kane, might have some. On Saturday, January
22, Bruce and Mussare accompanied Taylor to his apartment.
Kane did not have any marijuana, but either Taylor or Kane
suggested that they could get some if Bruce and Mussare
provided the money. Bruce then gave Kane $115 for the
purpose of buying drugs.

        Kane gave the money to Taylor, who used it to buy seven
bags of heroin. Kane and Taylor intended to resell the heroin,
make a profit, and use the proceeds to buy marijuana for Bruce
and Mussare. It is unclear whether Mussare and Bruce knew of
the heroin buying scheme, but they were present at the apartment
when Taylor left with the money and when he returned with the
heroin. Kane and Taylor then consumed some of the heroin
themselves, after which Kane left to sell the remaining bags.
Mussare and Bruce remained at the apartment, waiting for Kane
to return. Kane was unable to sell the remaining bags of heroin,
and did not return that night. Mussare and Bruce left Sunday
morning.

      On Sunday evening, Mussare and Bruce returned to the
apartment for the marijuana. Kane explained that he had been



for the purposes of argument only. In his briefs, Mussare raised
several additional constitutional and evidentiary challenges to the
conviction. Bruce has indicated that he wishes to adopt Mussare’s
arguments as his own, under Rule 28(i) of the Federal Rules of
Appellate Procedure. Because these cases were not consolidated
for the purposes of decision, we will not discuss the substance of
those arguments here. Those arguments are unpersuasive, however,
and for the reasons stated in United States v. Mussare, 02-3301, we
will affirm Bruce’s conviction even in the face of the additional
challenges.

                                3
unable to sell the heroin, and informed Mussare and Bruce that
he did not have the marijuana he owed them or the money they
had given him.

        On Monday, January 24, 2000, Mussare, Bruce, and
Taylor were together at Jason Tortelli’s apartment. Several other
people were also there, including David Shay. The group was
drinking and smoking marijuana. At some point during the
evening, Shay and Taylor were talking on the phone to Shay’s
girlfriend, Stacy Bardo. During that conversation, Shay punched
Taylor and told Bardo that he, Bruce, and Mussare had Taylor
and were looking for Kane, because he owed them money. Later
in the evening, Taylor was assaulted again, this time by Bruce,
who punched him in the face and then kicked him repeatedly.

        Around 11:00 p.m. on January 24, Tortelli told his guests
to leave. Taylor, Mussare, Bruce, Shay, and Robert Confer then
went to Taylor’s apartment to find Kane. Kane was not there.
During the course of the night, Taylor was tied up, kicked,
burned with cigarettes, pistol-whipped with a paintball gun, and
beaten with various objects. The letters “I M Thief” were
burned onto his torso with a heated coat hanger. Shay, Mussare,
and Bruce all took part in the assault. Taylor eventually offered
to call his mother to obtain the money.

       The next morning, Mussare and Bruce took Taylor back
to Tortelli’s apartment2 , where Taylor called his mother, told her
that he had been beaten, and asked her for $500 so that he could
pay the people who had beaten him.3 Mussare accompanied
Taylor to his mother’s house, where Taylor told his mother that
Mussare had nothing to do with what happened and obtained the
money from her. Taylor’s mother also gave Mussare five dollars
in gas money for helping her son. Taylor gave Mussare the rest
of the money after they returned to the car, and Mussare dropped


       2
           There was no phone at Taylor’s apartment.
       3
       Taylor initially asked his mother for $100 or $200, but
Mussare was standing next to him during the call and told him to
get $500.

                                  4
Taylor off at home.

       Taylor eventually told his parents what had really
happened. They took him to the emergency room for treatment
and called the police. The police searched Taylor’s apartment
and found evidence of the assault.

        A grand jury sitting in the Middle District of
Pennsylvania returned a four-count indictment against Bruce,
Mussare, and Shay, charging them with controlled substance
offenses and extortion offenses. Shay began to cooperate with
the government, and on April 25, 2001, the grand jury returned a
superseding indictment against Mussare and Bruce only. The
five-count superseding indictment charged Mussare and Bruce
with (1) conspiracy to possess and distribute heroin and
marijuana to persons under 21 years of age; (2) aiding, abetting,
and attempting to possess marijuana with the intent to distribute
it to persons under 21 years of age; (3) aiding, abetting, and
attempting to possess heroin with the intent to distribute it to
persons under 21 years of age; (4) conspiracy to collect a debt
through extortionate means; and (5) using extortionate means to
collect a debt.

       A jury returned a verdict acquitting Bruce and Mussare of
the heroin charges, but convicting them of the extortion-related
charges and conspiracy to possess marijuana. Bruce filed a
motion for judgment of acquittal on counts four and five,
arguing that the charges were unconstitutional and that there was
insufficient evidence to support the conviction. The District
Court denied that motion, and sentenced Bruce to 235 months in
prison and three years of supervised release. This appeal
followed.

                                II.

                                A.

      Bruce argues that 18 U.S.C. § 894 is unconstitutional,
because it exceeds Congress’s authority under the Commerce
Clause. He asserts that the statute is overly broad, because it

                                5
neither regulates a commercial activity nor contains a
requirement that a violator’s actions be connected in any way to
interstate commerce. This argument is unpersuasive and
contrary to existing Supreme Court precedent.

        In Perez v. United States, 402 U.S. 146 (1971), the
Supreme Court held that 18 U.S.C. § 894 was a valid exercise of
Congress’s power under the Commerce Clause. The Supreme
Court recognized that the Commerce Clause gives Congress the
authority to regulate three general categories of problems.
“First, the use of channels of interstate commerce which
Congress deems are being misused, as, for example, the
shipment of stolen goods . . . or of persons who have been
kidnaped. ” Id. at 150 (citations omitted). “Second, protection
of the instrumentalities of interstate commerce, as for example,
the destruction of an aircraft . . .” Id. “Third, those activities
affecting commerce.” Id. The Supreme Court held that Section
894 fell into the last category, and further held that Congress had
a rational basis for deciding that purely intrastate extortionate
credit transactions could still have an effect on interstate
commerce. Id. at 154. As such, the Supreme Court held that
Section 894 was constitutional on its face and as applied to
Perez, who was a low-level, local loan shark who only handled
transactions in his own state. Id. It reasoned that, as long as
Perez was a “member of the class which engages in ‘extortionate
credit transactions’ as defined by Congress,” then the statute was
properly applied. Id. at 152-53.

        More recently, the Supreme Court has stated that a valid
exercise of congressional power under the Commerce Clause
requires more than a simple assertion that the activity Congress
seeks to regulate has a substantial effect on interstate commerce.
United States v. Lopez, 514 U.S. 549 (1995). Nevertheless,
Lopez did not implicitly overrule all of the Supreme Court’s
prior Commerce Clause cases. See, e.g., Citizens Bank v.
Alafabco, Inc., 539 U.S. 52 (2003). In both Lopez and Citizens
Bank, moreover, the Supreme Court cited Perez with approval,
for the proposition that intrastate extortionate credit transactions
have a substantial effect on interstate commerce. Citizens Bank,
539 U.S. at 58; Lopez, 514 U.S. at 559-60.

                                 6
        Bruce also argues that Section 894 is unconstitutional as
applied to this case, because the drug transaction and subsequent
beating was purely local in nature, and neither he nor Mussare
are “known loan-sharks” or members of organized crime. This
argument is also unpersuasive. Although Congress had the links
between organized crime and loan sharks in mind when it passed
Section 894, the statute does not make the extortionate collection
of a debt illegal only in cases of known “loan sharks” or
members of organized crime. Perez, 402 U.S. at 154-56.
Instead, “[t]he term ‘creditor,’ with reference to any given
extension of credit, refers to any person making that extension of
credit, or to any person claiming by, under, or through any
person making that extension of credit.” 18 U.S.C. § 891 (2).
Under this definition, the statute will reach individuals such as
Bruce and Mussare, who act solely in an intrastate context and
who are not members of organized crime or loan sharks in the
traditional sense. “Where the class of activities is regulated, and
that class is within the reach of federal power, the courts have no
power ‘to excise, as trivial, individual instances’ of the class.”
Perez, 402 U.S. at 154 (quoting Maryland v. Wirtz, 392 U.S.
183, 193 (1962) (overruled on other grounds)). The statute is
constitutional as applied to Bruce and Mussare.

                                B.

        Bruce next argues that there was insufficient evidence to
support the conviction under Section 894. Review of a verdict
for sufficiency of the evidence is plenary. United States v.
Rosario, 118 F.3d 160, 163 (3d Cir. 1997). We will reverse a
jury verdict for insufficiency of the evidence “only when the
record contains no evidence, regardless of how it is weighted,
from which the jury could find guilt beyond a reasonable doubt.”
United States v. Anderson, 108 F.3d 478, 481 (3d Cir. 1997)
(citation omitted).

       Section 894 provides:

       (a) Whoever knowingly participates in any way, or
       conspires to do so, in the use of extortionate means
              (1) to collect or attempt to collect any

                                 7
       extension of credit, or
                (2) to punish any person for the
       nonrepayment thereof, shall be fined under this
       title or imprisoned not more than 20 years, or both.

An extension of credit is defined to mean “to make or renew any
loan, or enter into any agreement, tacit or express, whereby the
repayment or satisfaction of any debt or claim, whether
acknowledged or disputed, valid or invalid, and however arising,
may or will be deferred.” 18 U.S.C. § 891(1). Because of the
disjunctive “or,” if the extortionate collection of a debt involves
a loan, there is no additional requirement that the parties agree to
defer repayment of the loan.

       The statute does not define the term “loan.” The term is
generally defined as “[d]elivery by one party to and receipt by
another party of a sum of money upon agreement, express or
implied, to repay it with or without interest.” Black’s Law
Dictionary 936 (6th ed. 1990).

        Bruce argues that “the evidence at trial clearly showed
that there was no loan,” arguing that he and Mussare “merely
gave $115 to the victim for the purchase of Marijuana, which the
victim never produced.” (Appellant’s Br. at 11.) Bruce cites no
evidence for the proposition that the money given was not a
loan, however. At trial, Taylor testified that “I borrowed–asked
to borrow $115 from J. J. Mussare, and it was given to Jim
Kane, and then given to me to buy heroin with.” (App. at 18.)
Taylor testified that he understood that the money was to be
repaid, either in marijuana or in cash. (Id. at 20.) It also appears
that Bruce and Mussare knew that Kane and Taylor intended to
use the money to buy heroin, resell it for profit, and then buy
marijuana with the proceeds. (Id.) Although Bruce now asserts
that the money was more akin to an investment than a loan,
because Taylor received money from Bruce and Mussare and
understood that the money was to be paid back, a reasonable jury
could have found that the money was a loan.

        We observe that, even if a reasonable jury could not find
that a loan existed, it nevertheless could reasonably conclude

                                 8
that there was an agreement to defer repayment of the debt Kane
and Taylor owed to Bruce and Mussare. Taylor received the
money on Saturday, January 22. Bruce and Mussare remained at
Kane’s apartment until Sunday morning, while Kane and Taylor
each left the apartment, first to purchase heroin and then to try to
sell it for profit. Bruce and Mussare left the apartment Sunday
morning, but returned that evening for their marijuana. At that
point, Kane told them that he had been unable to resell the
heroin, and that he had neither the marijuana he had promised
them nor the money to repay them. Bruce and Mussare again
left without incident. It was not until Monday evening that
Bruce and Mussare assaulted Taylor. From this sequence of
events, a reasonable jury could find an agreement to defer
repayment of the debt. See United States v. DiPasquale, 740
F.2d 1282 , 1287 (3d Cir. 1984) (“A tacit agreement may be
implied from the circumstances surrounding the creation of the
debt.”).4 As such, there was sufficient evidence to support the
jury’s finding that an extension of credit had been made, either
because the initial payment was a loan or because an agreement
to postpone the payment of a claimed debt could be inferred.

                                 C.

        Appellant challenges his sentence under United States v.
Booker, 543 U.S.        , 125 S. Ct. 738 (2005). In light of the
determination of the judges of this court that the sentencing
issues appellant raises are best determined by the District Court
in the first instance, we will vacate the sentence and remand for
resentencing in accordance with Booker.



       4
         Bruce urges us to reject the reasoning in DiPasquale, noting
that several other federal courts have criticized its reasoning. See,
e.g., United States v. Stokes, 944 F.2d 211 (5th Cir. 1991)
(rejecting the reasoning of DiPasquale and noting a disagreement
among the federal courts regarding the interpretation of § 894).
Despite the disagreement among the federal courts, however,
DiPasquale is still good law in this Circuit, and we are not inclined
to revisit its holding that an agreement to defer repayment may be
inferred from the circumstances surrounding the debt.

                                 9
                               D.

       For the foregoing reasons, the judgment of the District
Court entered on August 12, 200 will be AFFIRMED as to the
conviction. The sentence will be vacated and the matter will be
remanded to the district court for resentencing in accordance
with Booker.




                               10
