59 F.3d 333

KAUFMAN, Senior District Judge,
concurring in part and dissenting in part:
I fully concur with Judge Jacobs’ majority opinion in all respects, except with regard to extension of credit. In that latter regard, I disagree with the majority’s view that the district court correctly set aside the loansharking convictions. The district court so did because, in its view, there was a lack of proof of extension of credit. The majority opinion of this appellate panel specifically notes “Congress’s desire to craft a flexible set of tools for prosecutors to wield with ‘vigor and imagination’ ...” United States v. Scotty 47 F.3d 1237, 1244 (2d Cir.1995) (citing H.R.Conf.Rep. No. 1397, 90th Cong., 2d Sess. 31, reprinted in 1968 U.S.C.C.A.N. 2021,2029). However, the majority proceeds to conclude that “no act committed by Wallace constituted an agreement to extend credit [because while] Wallace engaged in extortionate conduct ... Wallace never ‘entered] into an agreement’ to delay or forebear on any terms.” The majority cites to United States v. Boulahanis, 677 F.2d 586, 590 (7th Cir.), cert. denied 459 U.S. 1016, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982), and also notes, on a “but see” basis, United States v. DiPasquale, 740 F.2d 1282, 1287-88 (3d Cir.1984), cert. denied 469 U.S. 1228, 105 S.Ct. 1226, 1227, 84 L.Ed.2d 364 (1985). See note 4 in the majority opinion.
The majority also discusses Judge Fernberg’s opinion in United States v. Bufalino, 576 F.2d 446 (2d Cir.), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978). I agree with the majority that Bufalino does not require us to hold that there was, in the within case, any extension of credit, whether tacit or otherwise, pursuant to 18 U.S.C. § 894 and § 891, but there is also no suggestion in Bufalino that Congress intended anything other than a “broad” application of the definition of “extension of credit.” Indeed, what Judge Feinberg has written in Bufalino affirmatively suggests such a broad view. In Bufalino — and in Boulahanis and in Di-Pasquale —there was a lack of an “express” agreement to defer the repayment or satisfaction of a debt or claim. In all three of those cases, there was evidence of extortion and of implied short extensions of time for the alleged debtor to make payment to the alleged creditor. In Bufalino and in Di-Pasquale, this Court and the Third Circuit, respectively, seemingly concluded that a tacit agreement to defer was present. In DiPasquale, the Third Circuit, after noting at 1287 that its position was -in line with that taken by the Sixth and Ninth Circuits and perhaps with some reservation, also by the Fourth Circuit, wrote:
Only the Boulahanis court has constrained the scope of chapter 42 [in which section 894 and section 891, the definitional section, are included]. We decline to follow Boulahanis because we believe that its construction is inconsistent with the language and purpose of chapter 42.
DiPasquale, 740 F.2d at 1288.
In the end, in my view, the question posed in Bufalino, Boulahanis and DiPasquale, and in the within case, is essentially one of fact. In Boulahanis, 677 F.2d at 591, Judge Posner wrote that “we do not think the government met its burden of proof beyond a reasonable doubt.” In DiPasquale, 740 F.2d at 1288, Judge Seitz wrote: “[w]e conclude that a claimed debt is one type of extension of credit under section 891(1). The indictment was therefore sufficient under 18 U.S.C. § 894(a).” Judge Posner was of the opinion that the Government’s proof in Boulahanis was not sufficient to sustain proof beyond a reasonable doubt, even of a tacit agreement to extend. Judge Seitz held, in effect, in DiPasquale that the indictment sufficiently alleged a tacit agreement. In all three cases, Boulahanis, DiPasquale and Bufalino — and in the within case — the specific inquiry, I believe, is whether the trier of fact should have been permitted to find beyond a reasonable doubt the fact of the existence of a tacit agreement to extend credit. The majority in this case says “No”, as did Judge Posner in Boulahanis. Respectfully, I come to the opposite conclusion in this case and say Wes,” as did Judge Feinberg in Bufalino and Judge Seitz in DiPasquale. Accordingly, as to the “extension of credit” issue, I dissent and would remand to the district court with instructions to reinstate the jury verdicts in connection with the counts of the indictment pertaining to that single issue; otherwise, however, I join the majority.
. In that regard, see U.S. v. Goode, 945 F.2d 1168, 1170 (10th Cir.1991) (noting the lack of agreement between DiPasquale and Boulahanis). But see U.S. v. Stokes, 944 F.2d 211, 214 n. 1 and 215 (5th Cir.1991) (opting for the Boulahanis Court’s interpretation of section 894). Several courts have distinguished Boulahanis without expressing disagreement with it, see U.S. v. Polizzi, 801 F.2d 1543, 1556-57 (9th Cir.1986); U.S. v. McMahan 744 F.2d 647, 650 (8th Cir.1984); U.S. v. Brinkman, 739 F.2d 977, 983 n. 5 (4th Cir.1984).
. For broad readings of § 894(a), see also U.S. v. Stauffer, 922 F.2d 508, 512-13 (9th Cir.1990); U.S. v. Brinkman, 739 F.2d 977, 982-83 (4th Cir.1984); U.S. v. Sedlak, 720 F.2d 715, 720-21 (1st Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984); U.S. v. Andrino, 501 F.2d 1373, 1376-78 (9th Cir.1974); U.S. v. Briola, 465 F.2d 1018, 1021-22 (10th Cir.1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 688 (1973). Sedlak and Andrino were decided before DiPasquale, but not cited to therein.

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