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 

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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. 

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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 

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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 

 1 Analetto 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. 

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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. 

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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 

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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. 

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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). 

 5 We express no view as to the propriety of the District 

Court's prohibiting the prosecution from challenging male jurors 

going forward. 

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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 

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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. 

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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." 

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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 

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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. 

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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 

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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 

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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 fearinducing 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 

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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. 

 8 We 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. 

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