United States v. Nicolescu
Allegations that an attempted extortion scheme, if successful, would have resulted in the wiring of money from another state and affected the victim's charitable activities may be sufficient to allege that the attempted extortion affected interstate commerce. Masked men entered the residence of Anne Bass and Julian Lethbridge, injected them with something, and informed them that if they paid $8.5 million, they would receive an antidote. Bass and Lethbridge protested that they did not have that much cash. The intruders stole a motor vehicle. Investigators concluded that one of the intruders was Bass' butler, Emanuel Nicolescu. A jury convicted Nicolescu on counts of attempt and conspiracy to extort, in violation of the Hobbs Act, 18 United States Code §1951(a), and possession of a stolen motor vehicle. Nicolescu appealed and argued that the government failed to prove the interstate commerce element of the Hobbs Act conviction. If the intruders had extorted $8.5 million, as requested, Bass' accountant would have wired the money from another state. The extortion would have affected the scope of Bass' charitable activities. A reasonable juror could have found that the attempted extortion had the potential to affect interstate commerce. It did not constitute error to apply a two-point enhancement for Nicolescu's leader role, because Nicolescu was the only defendant with a prior connection to Bass, he possessed unique information about which doors would be unlocked and places in which to hide, and his DNA was located on the steering wheel of the motor vehicle that the intruders stole. It did not constitute error to apply a seven-level increase, because the amount in demand was greater than $5 million, pursuant to United States Sentencing Guideline §§2B3.2(b)(2) and 2B3.1(b)(7)(H). Nicolescu was not entitled to a three-level reduction under §2X1.1, because the intruders nearly completed the crime of extortion. The 2nd Circuit rejected Nicolescu's argument that he should not have received a two-level enhancement for bodily injury under U.S.S.G. §2B3.2(4)(A). The 2nd Circuit affirmed the decision of the District Court, Kravitz, J. Alexey Tarasov and Gerald McMahon represented the defendant. David Novick, Sandra Glover and Deirdre Daly represented the government.