RYA ZOBEL, District Judge
Defendant Michael D'Amico served as a city councillor in the City of Quincy, Massachusetts, for several years and ran for re-election in 2001. In the course of an investigation into corruption in the City's government, a cooperating witness paid defendant a sum of money and taped the attendant conversation concerning defendant's promise to coordinate City approvals necessary to the witness's business. Later in the investigation, federal agents questioned defendant about monies he received during his campaign and deemed his answers untruthful. On September 24, 2002, the United States indicted defendant for making false statements to the federal agents and violating the Hobbs Act by extortion. 18 U.S.C. §§ 1001 and 1951. Following trial, the jury found defendant guilty on both counts, and the Court denied his subsequent motion for judgment of acquittal. There remain for decision defendant's motions for a new trial and for a mistrial for prosecutorial misconduct.
Defendant's motion for a new trial relies upon numerous alleged errors. According to defendant, the crime of extortion requires general intent while the crime of attempted extortion requires specific intent, and thus, the indictment was duplicitous by including these two crimes in the same count. However, the First Circuit has recognized Hobbs Act extortion as a specific intent crime.United States v. Boylan, 898 F.2d 230, 253 (1st Cir. 1990). Defendant also argues error in the jury instructions on the interstate commerce element as not requiring the jury to find an actual effect on commerce but fails to acknowledge prior First Circuit rulings that potential effects may satisfy the commerce element for extortion when the effects do not materialize because extortionate demands are satisfied. See, e.g., United States v. Tormos-Vega, 959 F.2d 1103, 1113 (1st Cir. 1992).
Defendant claims that the indictment and jury instructions were both deficient in not identifying or defining the specific "official act" extorted by defendant. An indictment for Hobbs Act extortion in the context of campaign contributions should allege that "official conduct will be controlled by the terms of the promise or undertaking." McCormick v. U.S., 500 U.S. 257, 273 (1991). This requirement helps to distinguish legitimate campaign solicitations from those "made in return for an explicit promise or undertaking by the official to perform or not to perform an official act." Id. Accordingly, "the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." Evans v. United States, 504 U.S. 255, 268 (1992). There is no separate or additional requirement that a prosecutor identify in the indictment, or that a court define in its jury instructions, the object of extortion payments, although the evidence supported both, a finding that the amount exceeded a legitimate campaign contribution and that the object thereof was assistance with a road-widening project.
With respect to defendant's claim of error regarding evidence admitted de bene, the burden to strike admission of such evidence is upon the non-moving party, contrary to defendant's claims. See United States v. Sepulveda, 15 F.3d 1161, 1180 (1st Cir. 1993). Defendant argues error by constructive amendment of the indictment, as the prosecutor presented evidence of conduct that occurred after the exact point in time when the defendant extorted money and thus consummated the crime. However, defendant did not substantiate his claim with any showing that the evidence further admitted did not pertain directly to the extortion charged. See United States v. Fisher, 3 F.3d 456, 462-463 (1st Cir. 1993).
Defendant's final argument addresses both remaining motions and focuses on the prosecutor's closing argument. Early in the trial, the Court ruled out certain evidence proffered by the government concerning a cash payment received by defendant in 1996. Although the prosecutor improperly mentioned this payment in her closing argument, defendant fails to show that the closing remark was sufficiently harmful to merit a mistrial, especially in light of this Court's instruction to the jury members that they disregard the remark. See, e.g., U.S. v. Levy-Cordero, 67 F.3d 1002, 1008-1009 (1st Cir. 1995).
Accordingly, defendant's motions for a new trial and a mistrial are both denied.