Appeal from the United States District Court for the District of Nevada Roger L. Hunt, Chief District Judge, Presiding D.C. No.2:07-CR-00120- RLH-GWF-1
The opinion of the court was delivered by: Bybee, Circuit Judge
Argued and Submitted June 14, 2010-San Francisco, California
Before: Mary M. Schroeder and Jay S. Bybee, Circuit Judges, and Owen M. Panner, District Judge.*fn1
Jeffrey Greer was convicted by a jury of two counts of extortion under the Hobbs Act, 18 U.S.C. § 1951, and two counts of racketeering under 18 U.S.C. § 1952. On appeal, he argues first, that the district court failed to give a specific intent instruction and then proffered conflicting jury instructions that negated a mens rea element of extortion, and second, that the government improperly asked Greer to comment on the veracity of other witnesses during cross-examination. We review for plain error and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Greer Discovers Confidential Documents
In March 2007, while employed as a truck driver for French Trucking, Greer picked up bales of paper from Secured Fibers, a North Las Vegas recycling company, and delivered the bales to a plant in Alabama. After plant workers unloaded the paper, several hundred documents-about fifty pounds of paper that had come loose from the wired bales- still remained on the floor of the trailer. These documents contained sensitive information about the clients of several Las Vegas casinos-primarily Harrah's Entertainment and MGM/Mirage-including the clients' social security numbers, account numbers, betting limits, and betting habits. The casinos had contracted with Secured Fibers to collect these confidential documents and destroy them.
Once Greer examined the "ankle deep" paper that remained in his truck, he came to several realizations: he realized that the documents were confidential; that they should have been shredded; that the casinos would not want them publicized; and that the casinos might be willing to pay him a substantial amount of money to prevent the documents' disclosure.
Indeed, Greer testified he "was retiring from trucking that day" because he thought he could get half a million dollars from the casinos for the return of the documents.
Several days later, Greer contacted Vicki French-his boss and one of the owners of French Trucking-and asked her if he could keep "anything that was left in the trailer." Greer, however, concealed from his employer precisely what he had found. When French asked Greer to clarify his question, Greer did not ask whether he could keep confidential documents that remained in his truck. Rather, he asked: "[I]f I have some of that grass seed left in the trailer [from a previous delivery], can I take it home and plant it in my yard?" French answered that he could.*fn2
B. Greer Contacts the Casinos and Tries to Obtain Money
After obtaining his employer's permission to take home grass seed left in his trailer and plant it in his yard, Greer contacted the casinos. On April 27, 2007, Greer telephoned Harrah's Entertainment and told Security Director Henry Wilks he had information regarding players' accounts, social security numbers, and credit amounts. Greer further told Wilks he could obtain confidential information whenever he wanted because Harrah's had a "hole" in its system and offered to "plug" this "hole" if he was hired as a consultant. During the course of this conversation, Greer refused to identify himself or specify how he had obtained the clients' confidential information.
Five days later, Greer called Wilks again. After reiterating his desire to be hired as a consultant, Greer told Wilks that he had contacted an attorney and that the attorney advised him not to use the information Greer had in his possession.
Accordingly, Greer told Wilks that if a deal could not be made, he would "trash the information," but also warned Wilks that he could get more information in "two minutes whenever he wanted."
The following day, Greer spoke with Harrah's investigator, Randy Riley. This time, Greer identified himself as "Jeff" and told Riley not to trace the call. Greer informed Riley he had a significant amount of personal information regarding the casino's clients but refused to reveal how he obtained the information until the casino made Greer its "best offer." Additionally, Greer boasted he could obtain more information at any time and gave Riley an ultimatum: if the casino's offer was not ready by May 7, 2007, Greer would either disclose the information to the media or "seek other avenues."
At this point, Harrah's Entertainment contacted the FBI and reported Greer's "extortion attempt." Then, in an effort to develop evidence leading to Greer's arrest, Harrah's agreed to record future conversations with Greer and to offer Greer a fake "short-term security consulting contract." The casino also planted fake information in its employee database to determine-in later conversations with Greer-whether Greer had access to the database.
On May 7, 2007, frustrated that no deal had been made, Greer left a voice message directing the casino's officials to an auction listed on eBay. When Harrah's Entertainment's officials visited the website, they saw a hand grasping a pair of animal testicles with the caption: "A Large Gaming Company's Family Jewels." The auction site listed a starting bid of $100,000 and promised "inside business information" about a "large gaming company's" guests. This inside business information included casino restaurants and shops information (how much each earned and what credit cards were used), hotel guest information (who stayed in what room, how long they stayed, and any special requests made), and player information (social security numbers, credit limits, and tax information). Additionally, the posting promised unlimited access to this information.
Because Harrah's Entertainment viewed this posting as a "very serious threat," it offered Greer $5,000 in exchange for learning how Greer acquired the confidential information. Greer, however, was insulted by Harrah's offer, dismissed it as "ridiculous," and instead demanded a $250,000 "security consulting contract" and a $100,000 "bonus" to play in the World Series of Poker. With the FBI's acquiescence, Riley feigned interest in Greer's counter-proposal and arranged a "round table meeting" to finalize the deal. Harrah's, however, had no intention of paying Greer anything. Rather, undercover officers posing as casino executives planned to arrest Greer at the meeting scheduled for May 9, 2007, as soon as Greer signed the bogus contract and accepted the check for $250,000.
While en route to the meeting, Greer called Paul Urban, Harrah's Entertainment's Corporate Investigator and asked him if he "could keep a secret." When Urban answered affirmatively, Greer disclosed how he had discovered the information. Specifically, Greer told Urban he was a truck driver who picked up a load of paper from Secured Fibers and discovered a "handful" of documents left in his truck. Greer further said he knew the documents were confidential and he had "never bluffed a big company before." At the end of this conversation, Urban immediately notified Riley to cancel the casino's contract with Secured Fibers.
When Greer met with Harrah's officers and the undercover FBI agents, he accepted a check for $250,000 and a document purporting to be a security consulting contract. After the FBI agents arrested him, Greer told the agents that "he thought his actions were legal," and that he "had every right" to take the documents from his trailer. He further stated that he "capitaliz[ed] on somebody else's mistake" in trying to obtain $250,000 as well as a $100,000 poker stipend from the casino.
Aside from Harrah's Entertainment, Greer also contacted MGM/Mirage and tried to obtain money through similar tactics. Specifically, Greer called Bruce Gebhardt, the Senior Vice President of Global Security at MGM/Mirage, and told Gebhardt the casino had a security leak that he could identify for a price. Greer sent a fax containing a sample of the information Greer possessed and told Gebhardt the "information was like a river, that he could just dip his hand into it and get it, get the information at any time." When Gebhardt accused Greer of extortion, Greer threatened to disclose the information to the newspapers so that the public would know MGM/Mirage failed to protect their customers' confidential information. Additionally, Greer also directed MGM/Mirage to the vulgar auction posting on eBay. Greer then demanded $250,000 from MGM/Mirage for identifying the source of the casino's security leak, but, before MGM/Mirage responded to this demand, the casino learned Greer had been arrested.
C. Greer's Cross-Examination
After Greer's arrest, the government charged Greer with two counts of Attempted Interference with Commerce by Threats or Use of Fear (extortion) in violation of 18 U.S.C. § 1951, two counts of Wire Fraud in violation of 18 U.S.C. § 1343, and two counts of Use of Interstate Facility in Aid of Racketeering Activity (racketeering) in violation of 18 U.S.C. § 1952. At trial, Greer testified and, during his cross-examination, he made several denials which prompted the government to ask on approximately eight occasions whether government witnesses testified to "incorrect" or "inaccurate" information and on one occasion whether Greer believed Wilks was "less than candid" on the witness stand. For example, the following questioning occurred:
Q: I'm asking when Mr. Wilks testified that you had told him . . . you had access to Harrah's confidential information and could access it any time you wanted, if that's what you told Mr. Wilks in that call.
A: I do not recall telling him I could access it any time I wanted and I ...