Title United States v. Tobin
Date 1998
By Alito
Subject Misc
Contents
Page 1
LEXSEE 155 F 3D 636
UNITED STATES OF AMERICA v. KATHLEEN TOBIN, Appellant
No. 97-5304
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
155 F.3d 636; 1998 U.S. App. LEXIS 20773
March 10, 1998, Argued
August 25, 1998, Filed
SUBSEQUENT HISTORY: **1
Certiorari Denied February 22, 1999, Reported at: 1999
U.S. LEXIS 1497.
PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Cr. No. 95-00121).
DISPOSITION: Affirmed.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant challenged a judgment from the United States District Court for the District of New Jersey, which convicted her for extortion and other offenses.
OVERVIEW: Appellant engaged in severely harassing and threatening behavior towards the victims. Appellant made numerous threatening and harassing telephone calls, threatened baseless lawsuits, and engaged in other actions designed to harass the victims. Convicted for extortion, appellant on review argued that the district court erro- neously denied her request for a "claim-of--right" jury instruction regarding an alleged violation of the Hobbs Act, 18 U.S.C.S. § 1951. Appellant also claimed that the indictment should have been dismissed pursuant to the Speedy Trial Act, 18 U.S.C.S. § 3161 (c)(1). Appellant's conviction was affirmed because she was not entitled to a claim of right instruction where she did not threaten to pursue legal action to enforce the oral contract that she claimed existed, but rather threatened unrelated lawsuits alleging sexual harassment and took other actions seeking what she was not entitled to, and a particular victim and his associations had the right to be free from appellant's campaign of harassment. The court held that there had been no speedy trial violation because appellant's actions were responsible for much of the delay in her trial.
OUTCOME: Appellant's conviction was affirmed be-
cause the trial court had not erred in denying her a claim of right jury instruction, and because appellant was re- sponsible for a good portion of the delay upon which she based an alleged claim of a violation of her right to a speedy trial.
LexisNexis(R) Headnotes
Criminal Law & Procedure > Criminal Offenses > Racketeering > Hobbs Act
HN1 The claim-of--right defense to a Hobbs Act viola- tion requires that the government prove that the defendant did not have a legitimate claim to the thing of value that is the subject of the alleged extortionate act and that the defendant knew that he or she did not have such a claim.
COUNSEL: Kenneth M. Tuccillo (Argued), 139
Southside Avenue, Hastings, NY 10706, Counsel for
Appellant.
George S. Leone, Chief of Appeals, Allan Tananbaum
(Argued), Assistant U.S. Attorney, Office of United States
Attorney, 970 Broad Street, Room 502, Newark, NJ
07102, Counsel for Appellee.
JUDGES: Before: STAPLETON and ALITO, Circuit
Judges, and SHADUR, Senior District Judge. *
* The Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by designation.
OPINIONBY: ALITO
OPINION: *638 OPINION OF THE COURT ALITO, Circuit Judge:
Kathleen Tobin appeals her conviction and sentence in a criminal case. She argues that the district court er- roneously denied her request for a "claim-of--right" jury instruction regarding an alleged violation of the Hobbs
155 F.3d 636, *638; 1998 U.S. App. LEXIS 20773, **1
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Act, 18 U.S.C. § 1951. She also claims that the indict- ment should have been dismissed pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 **2 (c)(1), that the district court erred in admitting certain tape recordings, that her trial counsel was ineffective, and that she was sentenced under the wrong provision of the Sentencing Guidelines. For the reasons discussed below, we affirm Tobin's con- viction and sentence.
I.
Tobin was charged in a 14-count indictment with one count of interfering with interstate commerce by extor- tion and threatened physical violence, in violation of the Hobbs Act, 18 U.S.C. § 1951; three counts of making interstate telephone calls threatening to injure the person of another, in violation of 18 U.S.C. § 875(c); two counts of making threatening interstate telephone calls with the intent of extorting a thing of value from another person, in violation of 18 U.S.C. § 875(d); seven counts of traf- ficking in and using unauthorized telephone calling cards with the intent to defraud and thereby obtaining services valued in excess of $1000 within a one-year period, in violation of 18 U.S.C. § 1029(a)(2); and one count of possessing 15 or more unauthorized calling cards with the intent to defraud, in violation **3 of 18 U.S.C. §
1029(a)(3). She was tried before a jury and was convicted on all counts except those charging the making of inter- state telephone calls that threatened to injure the person of another.
The facts in this case, when properly viewed in the government's favor in light of Tobin's conviction by the jury, are relatively simple. William Cirignano was the leader of a New Jersey-based rock band named "Monroe." The band never had a business manager, and therefore Cirignano generally booked the band's "gigs" himself. In August or September of 1993, Tobin contacted Cirignano and sought to be hired as Monroe's booking agent. Tobin claimed to have contacts with clubs outside of the New York/New Jersey area in which Monroe usually per- formed.
Cirignano was initially receptive to Tobin's approach, but after two meetings he changed his mind. The second meeting took place at a club at which Tobin claimed to be hosting a birthday party. Tobin had claimed that Cirignano could meet the different bands that she represented, but none of the musicians at the club knew Tobin. When Cirignano introduced Tobin to Rick Seymour, Monroe's bass player, Tobin claimed that she **4 was already rep- resenting Monroe and that she had lined up many shows for the band. Cirignano and Seymour felt uncomfortable with the situation and wanted to leave. Tobin demanded that Cirignano drive her home from the club, and when he refused, she became angry. *639 Cirignano and
Seymour then slipped away behind Tobin's back.
Tobin immediately commenced a protracted cam- paign of telephone harassment. Soon after Cirignano left the club, she paged him about 12 times. His answering machine on his home telephone line had messages that were vulgar and intimidating. One message threatened:
"I have your expletive deleted for a year. I own you. I will do whatever I want with you." Tobin also stated:
"You don't know who you are expletive deleted with. And I own you . . . . I put too much time and effort into your band." These telephone calls continued at all hours of the day and night for several months without respite. Moreover, Tobin went far beyond vulgarity and an- noyance and included extortionate threats in her mes- sages. She threatened that she would file suit against Cirignano and would assert that he filed false charges against her, exposed himself to her, and demanded **5 sex. She also threatened to report to the Internal Revenue Service that he was not declaring income that he earned in his business of chauffeuring women who worked in "go-
go" bars.
Tobin also started a campaign of harassment against Cirignano's family and friends. Cirignano lived with his parents, and there were three separate telephone lines in the house. Tobin called all three lines dozens of times a day, and she also called Cirignano's uncles in Minnesota and Texas. She claimed to have information about the Cirignano family's credit history and their property in- terests. Cirignano's family changed all three numbers re- peatedly, but Tobin always obtained the new numbers even though they were unlisted. n1
n1 Tobin obtained these numbers by calling the telephone company and posing as an employee in the repair department or as an anxious parent seek- ing the new number. Bell Atlantic traced these calls to Tobin's residence in Queens.
Tobin also telephoned Jodi Kaplan, Cirignano's girl- friend. In her first week of **6 calling, Tobin called Kaplan ten times a day. Tobin told Kaplan that Cirignano was a crack cocaine dealer and that the police had Kaplan's house under surveillance. Tobin also claimed that Kaplan was liable as an accomplice for what she claimed was Cirignano's harassment of Tobin, and Tobin said that she had notified the Federal Bureau of Investigation about Kaplan's role in the affair. Tobin threatened to sue Kaplan and Cirignano for federal civil rights violations. In addi- tion, Tobin left anti-Semitic slurs on Kaplan's answering machine and taunted Kaplan about Kaplan's father's ter- minal illness.
155 F.3d 636, *639; 1998 U.S. App. LEXIS 20773, **6
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Tobin also threatened Cirignano with physical vio- lence. Tobin left messages for Cirignano intimating that he should get bodyguards and claiming that she was some- how connected to an outlaw biker gang that would kill him. She declared: "I am coming to find you," and she said that Cirignano would wind up "hanging from a ex- pletive deleted tree."
Of particular relevance to this appeal are Tobin's threats to destroy the band. Tobin claimed that she had listed herself as Monroe's representative and that when clubs called to book gigs, she was going to tell them that the band was "over" **7 and "non-existent." Tobin faxed a letter that said that "Monroe sucks and Billy
Cirignano is a five-foot--four-inch troll, tattooed 35- year-old lo ser. Monroe is dead." Tobin also followed through on her threats by terrorizing a club promoter so that he dropped Monroe from a billing that had previ- ously been arranged by the band. On another occasion, Tobin told Cirignano that she would have him arrested if he and the band played at a particular club. As a result, Monroe canceled that performance. Tobin had also threat- ened the club owner, who independently told Cirignano that it would not have been advisable for the band to play that gig. n2
n2 Tobin also obtained numerous fraudulent calling card accounts in other people's names, in- cluding Cirignano's. This was the basis of the seven counts of trafficking in and using unauthorized tele- phone calling cards and the one count of possessing
15 or more unauthorized calling cards with the in- tent to defraud. No issues have been raised in this appeal regarding these charges.
**8
Tobin was arrested on March 23, 1995. Her jury trial commenced on September 3, 1996, and on September 20,
1996, the jury convicted her of all charges except making interstate telephone calls that threatened to injure the per- son of another, in violation of *640 18 U.S.C. § 875(c). On April 30, 1997, she was sentenced to a 46 month term of imprisonment, to be followed by three years of supervised release. This appeal followed.
II.
A. Tobin's first argument is that the district court erred in denying her request for a "claim-of--right" jury instruc- tion. HN1 The claim-of--right defense to a Hobbs Act violation requires that the government prove that the de- fendant did not have a legitimate claim to the thing of value that is the subject of the alleged extortionate act and that the defendant knew that he or she did not have such a claim. See, e.g., United States v. Sturm, 870 F.2d 769,
773 (1st Cir. 1989) ("for purposes of the Hobbs Act, the use of legitimate economic threats to obtain property is wrongful only if the defendant has no claim-of--right to that property"). The defense is derived from the Supreme Court's decision in United States v. Enmons, 410 U.S. 396,
35 L. Ed. 2d 379, 93 S. Ct. 1007 (1973), **9 in which the Court held that threats and violence that occurred dur- ing the course of a labor strike were not covered by the Hobbs Act because the striking workers had a legitimate right to the things of value that they ultimately received. The Court relied in part on legislative history that pointed to the exclusion of labor violence from the purview of the Hobbs Act.
This circuit, as well as many others, originally lim- ited the claim-of--right defense to the particular context in which it was decided, namely, labor-management con- flicts. See United States v. Agnes, 753 F.2d 293, 297-99
(3d Cir. 1984) (limiting Enmons to "create a claim-of-- right defense only in those situations in which the use of force is expressly identified by Congress as being out- side the purview of the Hobbs Act"); United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979) (no claim of right defense outside of the labor violence context). Recently, however, this court adopted the reasoning of the First Circuit's Sturm decision and held that the claim-of--right defense applies to non-labor cases, so long as the threats involved are purely economic. Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494 (3d Cir. 1998).
**10 The court held that, in a case in which the al- leged perpetrator makes purely economic threats, there is no violation of the Hobbs Act unless the victim had a preexisting right to be free of the economic fear that the defendant utilized. Id. at 526.
As an example of a case in which the claim-of-- right defense applies, the Brokerage Concepts panel cited Viacom Int'l v. Icahn, 747 F. Supp. 205 (S.D.N.Y. 1990) aff'd on other grounds, 946 F.2d 998 (2d Cir. 1991). See Brokerage Concepts, 140 F.3d at 524-25. In Viacom, a corporate raider engaged in what is referred to as "green- mail," i.e., the raider amassed Viacom stock and threat- ened a corporate takeover unless the company purchased his stock at a premium over the market price. The Viacom court held that this threat did not constitute a violation of the Hobbs Act because Viacom did not have a preexisting right to be free from the threat of a takeover. 747 F. Supp. at 213.
Tobin argues that, under the caselaw cited above, she was entitled to a jury instruction about the claim-of--right defense. She is in error. The caselaw focuses on **11 whether the victim of the extortionate activity had a preex- isting right to be free from the threats invoked, and here Tobin's victims plainly possessed such a right. Tobin's
155 F.3d 636, *640; 1998 U.S. App. LEXIS 20773, **11
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actions went far beyond the hard bargaining tactics uti- lized in Brokerage Concepts and Viacom. Tobin did not threaten to pursue legal action to enforce the oral contract that she claimed existed. Rather, she threatened unrelated lawsuits alleging sexual harassment; she circulated flyers proclaiming that "Monroe is dead;" and she threatened Cirignano that
Club owners are not booking you in New York City . . . . Nobody wants you. You're washed up. You'll see what happens when all these directories come out and you're listed under my company name, and I get calls, you're finished. You're history, the band's over. That's exactly what I'll tell them. All the fan mail that I get, goes right back, telling them, the band is non-existent.
App. at 2399.
Moreover, Cirignano and his associates certainly had the right to be free from Tobin's campaign of telephone ha- rassment. As previously noted, Tobin made innumerable telephone calls to Cirignano's pager and *641 home telephone, as well **12 as to his parents, his girl- friend, and others. No matter how often these individuals changed their telephone numbers and requested that they be kept unlisted, Tobin obtained those numbers and be- gan the harassment anew. Tobin's actions -- unlike those in Brokerage Concepts and Viacom -- are certainly within the purview of the Hobbs Act.
In view of the evidence regarding Tobin's conduct, the district judge did not err in refusing to give a claim-of-- right instruction to the jury. It was entirely appropriate for the district court to decide that the evidence precluded the instruction as a matter of law. In Sturm, 870 F.2d at 773, the court found as a matter of law that the claim of right instruction was inapplicable because a debtor did not have the right to charge a creditor for locating collateral. n3 In the present case, Tobin did not have the right to seek to enforce her alleged oral contract through a campaign of telephone terrorism. The claim of right instruction was clearly unwarranted, and the district court did not err in refusing to instruct the jury on the defense. n4
n3 In Sturm, the victim was the creditor of the defendant and had repossessed the defendant's air- plane. The defendant sought to seek a fee from the creditor for locating the airplane's logbooks.
**13
n4 Tobin also argues that the district court erred
in not repeating the definition of "knowing and wilfully" each time the district court discussed the Hobbs Act counts. Tobin does not contest that the district court properly instructed the jury as to the definition of the terms. Since Tobin did not object to the charge at trial, this issue is reviewed only for plain error. See Fed. R. Crim. P. 52(b).
Given that the mens rea elements of "knowing and wilfully" applied to several offenses within the jury charge, it was not necessary for the court to de- fine the terms each time they appeared. See United States v. Lake, 150 F.3d 269, 1998 U.S. App. LEXIS
16460, No. 97-7462, slip op. at 10-11 (3d Cir.
1998); United States v. Sokolow, 91 F.3d 396, 409-
10 (3d Cir. 1996) (where district court properly de- fined scienter, it was not plain error not to repeat the definition each time the issue arose).
B. Tobin's next argument is that the district court erred in refusing to dismiss the indictment under the Speedy Trial Act, 18 U.S.C. § 3161 **14 (c)(1), because more than 70 non-excludable days elapsed from the date of her indictment on March 14, 1995, to the commencement of her trial on September 3, 1996. Specifically, Tobin argues that 21 days elapsed from March 24, 1995, through April
27, 1995, and that 54 days elapsed from December 7,
1995, through January 31, 1996, for a total of 75 days. She further points to eight days that elapsed from June
24, 1996, through July 3, 1996. The government con- cedes that these last eight days were non-excludable.
The government argues that Tobin's argument fails because the time period from January 11, 1996, through January 31, 1996, was excludable in its entirety. n5
Working backwards from January 31, 1996, the govern- ment maintains that January 31 is excludable because Tobin filed motions on that day, thereby stopping the clock. 18 U.S.C. § 3161(h)(1)(F). The period between January 24, 1996, and January 30, 1996, is excludable, the government contends, because Tobin's attorney met with Pretrial Services on January 24 and discussed Tobin's refusal to comply with the magistrate judge's order to un- dergo a mental evaluation. (The magistrate judge had or- dered the evaluation **15 on March 25, 1995.) Because Tobin refused to comply with the earlier order, the district court ordered a competency hearing on January 25, 1996. At that hearing, the government argued that Tobin was in flagrant violation of the order to undergo psychiatric evaluation. The government contends that its argument at the hearing was the functional equivalent of a motion and thereby stopped the clock from January 25, 1996, through January 31, 1996, while the motion was pending.
155 F.3d 636, *641; 1998 U.S. App. LEXIS 20773, **15
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n5 Tobin argues that the government waived this argument by not presenting it in the govern- ment's briefs below. This is incorrect. The govern- ment clearly raised this argument to the district court and the court accepted this argument in deny- ing Tobin's Speedy Trial motion. App. at 560-62. In any event, because our affirmance of the decision below can be premised on any legitimate ground, even one not advanced below, Tobin's waiver argu- ment fails.
The time period from January 11, 1996, through January 24, 1996, is excludable, the government **16 argues, because Tobin's counsel told Pretrial Services and the government that Tobin's petition for a writ of certiorari
*642 challenging the magistrate judge's order regard- ing the psychiatric evaluation order had been denied. The government argues that she should have immediately sub- mitted to the evaluation, but she did not do so. Rather, her attorney asked for two weeks so that he could make ar- rangements for Tobin to be evaluated and could try to convince her to comply. The government argues that this time period should be excluded because the delay was due solely to Tobin's intransigence and not to any fault on the government's part. Cf. United States v. Bey, 499 F.2d 194
(3d Cir. 1974) (in Sixth Amendment speedy trial context, time caused by defendant's failure to submit to court- ordered psychiatric examination was excludable from the analysis). The government contends that because the time period from January 11, 1996, through January 31, 1996, was excludable in its entirety, only 35 days elapsed from December 7, 1995, through January 10, 1996. This results in a total of 64 non-excludable days before trial.
The government's arguments are persuasive. **17 Although there was never a formal motion, the govern- ment did, in effect, move to have Tobin comply with the competency evaluation that had been ordered in March of 1995. Moreover, since the order had been in effect for more than ten months and Tobin had yet to comply, it is unreasonable to include the two-week delay that had been requested by Tobin's counsel in order to convince her to comply with a court order that had been challenged with- out success in the Supreme Court. Although Bey, supra, involved a speedy trial claim under the Sixth Amendment, rather than the Speedy Trial Act, we nevertheless find Bey's reasoning to be apposite and persuasive. A defen- dant's unwillingness to comply with a valid competency examination order should not be counted against the gov- ernment. Since only 35 days should be included, along with the eight-and 21-day periods that the government concedes, only 64 days elapsed. As a result, the district court did not err in refusing to dismiss the indictment on Speedy Trial Act grounds.
C. Tobin next argues that the district court erred in ad- mitting into evidence various audio tapes that had purport- edly come from William Cirignano's **18 telephone answering machine and contained threatening messages from Tobin. The government laid a foundation for the admission of the tapes through Cirignano, and defense counsel requested the opportunity to voir dire Cirignano about how the tapes had been made. During the voir dire, Cirignano denied having edited the tapes. After voir dire, defense counsel stated that he had no further questions, and the tapes were received into evidence.
After the government had rested, Tobin called an ex- pert witness who testified that one of the messages on one of the 13 tapes had been edited, contrary to Cirignano's testimony. The expert explained that the tape could not have been made on an answering machine, as Cirignano testified, since the tape was in stereo and answering ma- chines are monaural. Moreover, the expert pointed to breaks in the sound that were visible on the tape itself after application of magnetic developing fluid. After the expert testified, defense counsel did not object to the prior admission of the tape at issue. Rather, he argued during summation that Cirignano had lied about the making of the tapes and was therefore an incredible witness.
In considering Tobin's argument **19 regarding the admission of the tape, we must first decide what standard of review to apply. Tobin argues that our review is plenary, while the government argues that we should not consider the issue at all, since Tobin's attorney affirmatively waived the issue at trial. It is not entirely clear from the record that Tobin's attorney affirmatively waived the issue. We will not exercise plenary review, however, because Tobin did not object to the admission of the tapes. Because there was no objection, we will limit our review to plain error. Tobin's evidentiary argument fails to meet the plain error standard because it is clear that, even if the district court erred in admitting the suspect tape, this error did not affect substantial rights. See Fed. R. Crim. P. 52(b). Indeed, the error, if any, was harmless. The court re- ceived into evidence 13 tapes containing 131 messages. Even if the one questionable tape had been excluded, there remained 126 messages, including 95 *643 from Cirignano's answering machine. Even if the district court erred in admitting the altered message, or even the entire tape, there were still so many other messages that incul- pated Tobin that the error **20 was harmless. Moreover, an unaltered version of the message that the expert had claimed had been edited was present on one of the other tapes that had been admitted into evidence. n6 Finally, any attack on the authenticity of the one tape should not spill over onto the other tapes, since there was no evidence that there were any problems with the other tapes. See United
155 F.3d 636, *643; 1998 U.S. App. LEXIS 20773, **20
Page 6
States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d
31, 109 (D.C. Cir. 1976) (18 1/2 minute gap on one tape
"hardly shows that other tapes, on which no erasures were present, were not authentic").
n6 Tobin has no specific basis to attack the tape containing the unaltered or "long" version of the message at issue. Her expert testified, regarding this latter tape, that "I didn't authenticate that particular tape, but in listening I found it to be true that the message was an answering machine message that was received and recorded in its entirety ." App. at
1463.
D. Tobin's last claim regarding her trial is that she was **21 afforded ineffective assistance of counsel. However, claims of ineffective assistance of counsel are ordinarily not cognizable on direct appeal. United States v. DeRewal, 10 F.3d 100, 103 (3d Cir. 1993). The proper mechanism for challenging the efficacy of counsel is through a motion pursuant to 28 U.S.C. § 2255. We there- fore decline to address this issue.
E. Tobin's final claim is that the district court erred in applying U.S.S.G. § 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) instead of § 2B3.3
(Blackmail and Similar Forms of Extortion). n7 We hold, however, that the district court properly applied § 2B3.2 to Tobin's conduct.
n7 The Base Offense Level under § 2B3.2 is
18; the Base Offense Level under § 2B3.3 is 9.
The commentary to § 2B3.2 states that:
This guideline applies if there was any threat, express or implied, that reasonably could be interpreted as one to injure a person or phys- ically damage property, or any comparably
**22 serious threat, such as to drive an enterprise out of business. Even if the threat does not in itself imply violence, the possi- bility of violence or serious adverse conse- quences may be inferred from the circum- stances of the threat or the reputation of the person making it. An ambiguous threat, such as "pay up or else," or a threat to cause labor problems, ordinarily should be treated under this section.
U.S.S.G. § 2B3.2, Application Note 2 (1995 ed.) (empha- sis added). Tobin contends that § 2B3.2 does not apply
since Monroe was not an economically viable entity, in that the band played only six to ten gigs a year and barely broke even on those gigs it did play.
Tobin cites United States v. Inigo, 925 F.2d 641 (3d Cir. 1991), for the proposition that in order for § 2B3.2 to apply, the threat to the viability of the entity must be of tremendous economic magnitude in absolute terms. In Inigo, a group of textile workers attempted to extort
$10 million from E.I. Dupont de Nemours and Company, Inc., ("Dupont"), threatening that they would compete with Dupont in Spandex manufacturing using trade se- crets stolen from the company. This court held **23 that U.S.S.G. § 2B3.2 did not apply to this conduct be- cause it did not threaten the existence of the victim. Tobin interprets Inigo to mean that a threat that is of lesser mag- nitude in absolute terms than that in Inigo will not trigger
§ 2B3.2. We reject Tobin's interpretation of Inigo. We un- derstand Inigo to mean that the threat that the defendants would compete with a multi-billion dollar corporation in one of its manufacturing areas if they were not given $10 million was not a threat to drive that enterprise out of busi- ness. Clearly, if the victim had been a "mom-and--pop" proprietorship with revenues of $1 million and a single line of business, a threat such as the one in Inigo coupled with a demand for $10 million would have been sufficient to trigger § 2B3.2.
The Sixth Circuit's decision in United States v. Williams, 952 F.2d 1504 (6th Cir. 1991), lends support to the district court's application of § 2B3.2. In Williams, defendants threatened the victims with voting to block a rezoning proposal if the local sheriff was not bribed. Indeed, defendants told the developers that their project was "dead" if *644 they did not **24 provide a con- sulting fee of $250,000. Although the amount requested was far less than the $10 million demanded by the defen- dants in Inigo, and the amount the victims were at risk of losing was only a few million dollars, the Sixth Circuit held that § 2B3.2 applied.
In sum, in determining whether § 2B3.2 should be applied, the focus is on the economic effect on the par- ticular victim, not the absolute magnitude of the threat. Here, Tobin's actions threatened the viability of the band. If she had carried out the destructive course of action that she threatened (and indeed, implemented to a certain extent), the band would have faced the reasonable prob- ability of its demise. n8 The district court thus properly applied U.S.S.G. § 2B3.2 to Tobin's conduct.
n8 We note also that the Sentencing Guidelines do not limit § 2B3.2 to "profit-generating enter- prises." There is nothing in the language of the Guideline or the commentary to suggest that the
155 F.3d 636, *644; 1998 U.S. App. LEXIS 20773, **24
Page 7
provision is limited in the way Tobin suggests.
III.
We have **25 considered all of Tobin's claims and find them to be without merit. For the reasons discussed above, we affirm the judgment of conviction and sentence imposed by the district court.
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