Wynn Las Vegas Hotel And Casino

[T]he thing held secret must be unknown to the general public, or to some particular part thereof which might be interested in obtaining knowledge of the secret; the secret must concern some matter of fact, relating to things past, present, or future; the secret must affect the threatened person in some way so far unfavorable to the reputation, or to some other interest of the threatened person, that threatened exposure thereof would be likely to induce him through fear to pay out money or property for the purpose of avoiding the exposure. [FN13]

FN13. People v. Lavine, 115 Cal.App. 289, 1 P.2d 496, 499 (1931).

Although the State argued that the truth or falsity of Phillips' claim of common heritage with Wynn was irrelevant, the jury was not instructed on why or how a true claim would violate the statute. The State presented evidence that the claim was false, but it never made the distinction between a false claim under the libel or disgrace provisions of the statute and a true claim under the disgrace or secret provisions. Thus, the jury could have convicted Phillips on the legally insufficient theory that a true claim constituted libel. In addition, the jury might have concluded that making a true claim constituted a crime without ever finding that its exposure would subject Wynn to disgrace or that the claim was an unfavorable secret likely to induce Wynn to pay to prevent its disclosure. [FN14]

FN14. Indeed, no evidence was ever presented that the claim was true, only that Phillips may have believed it to be true.

We conclude that the district court's failure to properly instruct the jury on the elements of libel, disgrace and secret under the statute created a situation where the jury was permitted to consider a legally insufficient theory of extortion in its deliberations. Because the general verdict form does not specify which theory of extortion was used to convict Phillips, we reverse the extortion convictions per Yates v. United States, [FN15] United States v. Garcia, [FN16] and Griffin v. United States. [FN17]