United States v. Nicholas A. Stirone

HASTIE, Circuit Judge

(dissenting).

One of the principal questions in this case is whether the court below erred in charging the jury as follows:

“Or if you are satisfied beyond a reasonable doubt that Mr. Rider’s concrete was used for constructing a mill which would manufacture articles of steel to be shipped in interstate commerce and if you also believe that the defendant extorted money from Mr. Rider, you are instructed as a matter of law that there has been a substantial effect on interstate commerce shown by the United States. In other words, if you find the facts to be as the Government contends, interstate commerce has been affected, obstructed and delayed.”

Stating the issue thus raised this court asks:

“Is an interference with a man who is furnishing material for a mill which, when completed, will manufacture products which, if successfully marketed, will be shipped out of the state close enough to interstate commerce to be made a federal offense?”

To this question the majority give an affirmative answer. I regret that I am unable to concur.

It is recognized and agreed that the Hobbs Act, 18 U.S.C. § 1951 , and the present indictment founded on that statute do not purport to make an extortionate demand upon a business proprietor a federal crime except upon a clear showing that such interference with the business in question actually “obstructs, delays or affects” interstate commerce or the movement of some article in such commerce. Cf. United States v. Employing Plasterers’ Ass’n, 1954, 347 U.S. 186 , 74 S.Ct. 452 , 98 L.Ed. 618 .

In some situations the business against which an extortionate demand has been made can be shown to be a part of or intimately related to interstate commerce so that any disruption of that business necessarily has significant effect upon commerce. Thus, and most obviously, if the business directly affected by an extortionate demand is interstate transportation the wrong is within the Act. E. g. United States v. Kemble, 3 Cir., 1952, 198 F.2d 889 . Again, if extortion is directed against a proprietor engaged in providing, operating or otherwise working upon something so closely related to functioning interstate commerce as to merit characterization as a facility or instrumentality of such commerce, this in itself may be enough to bring extortion hampering that enterprise within the statute. Cf. Mitchell v. C. W. Vollmer & Co., 1955, 349 U.S. 427 , 75 S.Ct. 860 , 99 L.Ed. 1196 ; Oversheet v. North Shore Corp., 1943, 318 U.S. 125 , 63 S.Ct. 494 , 87 L.Ed. 656 ; Archer v. Brown & Root, Inc., 5 Cir., 1957, 241 F.2d 663 .

But here the only commerce said to be affected is the prospective distribution of goods to be produced by a factory about to be constructed. I think it would be an unwarranted extension of the concept of wrongful conduct affecting interstate commerce to embrace this interference with the supplying of building material for a structure which will house an activity which will eventually create some new commerce. In other circumstances it has been thought essential to federal jurisdiction under the commerce clause that the regulated conduct be related to some existing commerce, and not solely to commerce contemplated or planned to have its beginning in the future. This view is exemplified and strongly supported by the cases, of which our own decision in Kelly v. Ford, Bacon & Davis, Inc., 3 Cir., 1947, 162 F.2d 555 , is an often cited leader, refusing to extend the Fair La *579 bor Standards Act conception of activity affecting the production of goods for commerce to the construction of new plants intended solely for the future production of goods for interstate distribution. The vitality of this concept is attested by Murphey v. Reed, 1948, 335 U.S. 865 , 69 S.Ct. 105 , 93 L.Ed. 410 , and a comment on that decision in Mitchell v. C. W. Vollmer & Co. supra, 349 U.S. at 430, note 2, 75 S.Ct. at page 862 . It seems to me that the special aversion of the criminal law for speculative conclusions in the chain of proof of guilt makes this limitation even more appropriate, indeed essential, in applying the Hobbs Act.

In addition to this difficulty of affecting commerce not yet begun, the present case presents a second speculative factor. The extortionate threat was made against a local supplier of mixed concrete. It is entirely speculative whether or not preventing this single material-man from furnishing mixed concrete on the construction job he was serving would have affected even future interstate commerce. Was concrete in abundant or short supply? Were there other materialmen ready and anxious to supply without delay the concrete needed for the job? The record tells us nothing. But without some proof that the loss of this supplier would in fact have some delaying effect on the eventual productivity of the mill, any suggested ultimate effect even on interstate commerce several steps removed is speculative to an extreme degree. Cf. United States v. Starlite Drive-In, Inc., 7 Cir., 1953, 204 F.2d 419 . Indeed, I understand the authoritative rule to be that where the conduct in question is an interference with a distinct solely local business, there must be a substantial resultant demonstrable effect, the very antithesis of a speculative effect, upon interstate commerce to justify federal intervention under the commerce power. Mandeville Island Farms, Inc., v. American Crystal Sugar Co., 1948, 334 U.S. 219 , 68 S.Ct. 996 , 92 L.Ed. 1328 ; Wickard v. Filburn, 1942, 317 U.S. 111 , 63 S.Ct. 82 , 87 L.Ed. 122 ; United States v. Wrightwood Dairy Co., 1942, 315 U.S. 110 , 62 S.Ct. 523 , 86 L.Ed. 726 . It is true that “fi]f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.” See United States v. Women’s Sportswear Mfgs. Ass’n, 1949, 336 U.S. 460, 464 , 69 S.Ct. 714, 716 , 93 L.Ed. 805 . But this figure of speech carries with it the idea that the “squeeze” must be real and the “pinch” uncomfortably perceptible.

On the present record no more can be said than that what was done to an entirely local business might conceivably have future impact on commerce. Most certainly not even a likelihood of actual impact upon interstate commerce can properly be said to have been proved beyond reasonable doubt. Yet that at least was the burden the government undertook to bear in this criminal case.

Finally, it should be considered and kept in mind that the control and punishment of local extortion is primarily the business of local or state government. The Hobbs Act is an auxiliary and partially duplicating federal superimposition on state law enforcement. In the view of Congress this is a desirable measure of federal assistance to the states in the exercise of their police power. But where state power and responsibility are thus primary and the national government is merely performing an auxiliary function, we should not be eager to stretch federal jurisdiction to cover doubtful cases offering only a tenuous or speculative theory of federal jurisdiction. See Schwartz, Federal Criminal Jurisdiction and Prosecutors’ Discretion, 1948, 13 Law and Contemporary Problems, 64, 70. We should insist that federal jurisdiction be clear before imposing federal sanctions in an area of primarily local concern. Federal jurisdiction is certainly far from clear in the circumstances we are now considering.

What has been said in this dissenting opinion concerns only one of the two bases upon which the jury could have found the essential effect upon inter *580 state commerce under the court’s charge. We cannot know upon which theory the jury proceeded in finding the accused guilty. Therefore, I would send this case back to the district court for a new trial at which the erroneous theory of involvement of interstate commerce would be eliminated.