United States v. Williams

TATE, Circuit Judge,

concurring:

I agree with the majority that summary calendar treatment is appropriate, since (a) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument and (b) under the current state of the law, the dispositive issue has been authoritatively decided by decisions of eight of the circuits. F.Rule App.Pro., Rule 34(a) (as amended and adopted in 1979); Local Rule 18, United States Court of Appeals for the Fifth Circuit Local Rules. I further agree completely with the majority that the definition of “extortion” in the Hobbs Act as obtaining property “under color of official right,” 18 U.S.C.A. § 1951 (b)(2), does not, by reason of the italicized phrase, invalidate the statute as unconstitutionally vague.

Nevertheless, I feel impelled to state, for benefit of en banc consideration or further review, that — were the slate clean of prior decisions by the other circuits — it is clear to me (as it was to the district judge) that the congressional intent to punish racketeering by extortion, with penalties of up to twenty years imprisonment, included that the extortion be by coercion, economic or otherwise. 1 Ruff, Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 Georgetown Law Journal 1171, 1179-86 (1977).

Here, a local school board member accepted a bribe voluntarily given, without any element of duress, in the justified expectation of receiving favorable public contracts — conduct to be roundly condemned and subject to prosecution under state law (not federal law, absent interstate travel). Much as we may deplore such conduct and wish for its extirpation and punishment, respect for our federal system demands that, in the absence of congressional intent validly exercised, local criminal conduct be punishable through prosecution by the state rather than by the central government.

United States v. Kenny, 462 F.2d 1205, 1229 (3rd Cir. 1972), first held that conduct is punishable under the 1934 Hobbs Act — i. e., obtaining property “by wrongful use of actual or threatened force, violence, or fear, or under color of official right” — without proof of an element of duress when property is obtained by a public official “under color of official right.” The dissenting opinion of Judge Aldisert in United States v. Cerilli, 603 F.2d 415, 427 (3rd Cir. 1979), is to me convincing that the authorities relied upon by Kenny were inapposite and that the congressional history discloses a clear legislative intent not to include non-coercive conduct within the intended meaning of the prohibited obtaining of property “under color of official right.” Nevertheless, the United States Supreme Court denied certiorari when review was sought on this basis. Cerilli v. United States, 444 U.S. 1043 , 100 S.Ct. 728 , 62 L.Ed.2d 728 (1980).

*127 Under the circumstances, therefore, and even conceding that the denial of certiorari did not necessarily constitute approval, I do not believe that oral argument would be of significant aid in the decisional process but, rather, would unduly delay panel decision of what a preponderance of the court might reasonably agree was a dispositive issue authoritatively decided by eight other circuits. Despite my personal reservations as to the correctness of these decisions in their misreliance upon inapposite judicial decisions rather than upon the congressional intent, I therefore respectfully concur.

. As stated for the court by Judge Wisdom, in an opinion which accepted as undisputed this concept: “It is the wrongful use of an otherwise valid power that converts dutiful action into extortion. If the purpose and effect are to intimidate others, forcing them to pay, the action constitutes extortion. . . The distinction from bribery is therefore the initiative and purpose on the part of the official and the fear and lack of voluntariness on the part of the victim.” United States v. Hyde, 448 F.2d 815, 833 (5th Cir. 1971).