Nilsen contends that the government failed to prove an essential element of the crimes charged in the indictment because the term "thing of value" embraces only property rights, not an intangible such as the testimony of a witness. The government, on the other hand, argues that the broad language of the phrase "thing of value" encompasses intangible objectives as well as tangible property rights.
If a criminal statute is subject to two reasonable constructions, the harsher may be applied to penalize a defendant "only when Congress has spoken in clear and definite language."
McNally v. United States, 483 U.S. 350, 359, 107 S.Ct. 2875, 2881, 97 L.Ed.2d 292 (1987). Thus, Nilsen's conviction can be affirmed only if the term "thing of value" unambiguously covers intangible considerations. As the Second Circuit Court of Appeals noted in
United States v. Girard, 601 F.2d 69, 71 (1979), Congress' frequent use of "thing of value" in various criminal statutes has evolved the phrase into a term of art which the courts generally construe to envelope both tangibles and intangibles.
This broad interpretation is based upon a recognition that monetary worth is not the sole measure of value.
See United States v. Schwartz, 785 F.2d 673, 679 (9th Cir.1986). The conduct and expectations of both the defendant and the subject of the extortionate threat also can establish whether an intangible objective is a "thing of value."
See United States v. Zouras, 497 F.2d 1115, 1121 (7th Cir.1974). The testimony of a key government witness has previously been held to be a "thing of value" within the meaning of § 876 based upon the contents of a threatening letter from the defendant to the witness and the witness's testimony that she valued the right to testify against the defendant.
Id. We therefore hold that the phrase "thing of value" is a clearly defined term that includes intangible objectives, and that the evidence was sufficient to establish that Nilsen mailed a threatening letter with intent to extort a thing of value from Ferullo — her testimony linking him to two of the state bank robbery charges pending against him.