United States v. Oscar E. Hyde

RIVES, Circuit Judge

(dissenting):

I respectfully dissent.

Near the beginning of the majority opinion, my colleagues “sketch some of the facts showing how the defendants operated.” The “facts” so sketched are damning. They show the defendants to be guilty of extortion and leave little doubt as to their interference with commerce. I assume, however, that my colleagues do not mean to state “facts” as found by the District Court and approved by this Court, but mean no more than to say that there was sufficient evidence from which reasonable-minded jurors could have believed beyond a reasonable doubt that such are the true “facts.” That is made clear later in that part of the majority opinion also dealing with the sufficiency of the evidence, but particularly as to the element of interference with commerce. Their footnote 29 explains that “after a verdict of guilty the evidence must be considered in the light most favorable to the government” as establishing the true “facts.”

These prefatory remarks are made in the hope that we may not prejudge the guilt of the defendants. I agree that the evidence was sufficient from which the jury could properly have found the defendants guilty. However, it was also within the province of the jury to find them not guilty.

One of the crowning glories of our system of government is that in all criminal prosecutions the accused enjoys the right to trial by an impartial jury. Our forefathers considered that right of such importance that it was guaranteed twice, first in Article 3, Section 2, Clause 3 of *851 the Constitution and then in the Sixth Amendment. What I am trying to say has been expressed most eloquently for the Supreme Court by Justice Frankfurter :

“In view of the Government’s insistence that there is abundant evidence to indicate that Bollenbach was implicated in the criminal enterprise from the beginning, it may not be amiss to remind that the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials in the federal courts.

“Accordingly, we cannot treat the manifest misdirection in the circumstances of this case as one of those ‘technical errors’ which ‘do not affect the substantial rights of the parties’ and must therefore be disregarded. 40 Stat. 1181 , 28 U.S.C. § 391 . All law is technical if viewed solely from concern for punishing crime without heeding the mode by which it is accomplished. * * * From presuming too often all errors to be ‘prejudicial,’ the judicial pendulum need not swing to presuming all errors to be ‘harmless’ if only the appellate court is left without doubt that one who claims its corrective process is, after all, guilty. In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however cumbersome that process may be.”

Bollenbach v. United States, 1946, 326 U.S. 607, 614, 615 , 66 S.Ct. 402, 406 , 90 L.Ed. 350 .

The principle upon which I submit that the decision of this appeal should turn was explained by the elder Justice Harlan, as the organ of the Court, in Sparf and Hansen v. United States, 1895, 156 U.S. 51, 105, 106 , 15 S.Ct. 273, 294 , 39 L.Ed. 343 :

“We have said that, with few exceptions, the rules which obtain in civil cases in relation to the authority of the court to instruct the jury upon all matters of law arising upon the issues to be tried, are applicable in the trial of criminal cases. The most important of those exceptions is that it is not competent for the court, in a criminal case, to instruct the jury peremptorily to find the accused guilty of the offense charged, or of any criminal offense less than that charged. The grounds upon which this exception rests were well stated by Judge Mc-Crary, Mr. Justice Miller concurring, in United States v. Taylor, 3 McCrary, 500 , 505. It was there said: ‘In a civil case, the court may set aside the verdict, whether it be for the plaintiff or defendant, upon the ground that it is contrary to the law as given by the court; but in a criminal case, if the verdict is one of acquittal, the court has no power to set it aside. It would be a useless form for a court to submit a civil case, involving only questions of law, to the consideration of a jury, where the verdict, when found, if not in accordance with the court’s view of the law, would be set aside. The same result is accomplished by an instruction given in advance to find a verdict in accordance with the court’s opinion of the law. But not so in criminal cases. A verdict of acquittal cannot be set aside; and therefore, if the court can direct a verdict of guilty, it can do indirectly that which it has no power to do directly.’ ”

Judge Tamm, speaking for the D.C. Circuit in a recent case, relied heavily on earlier decisions of this Circuit in stating what I submit is the true rule:

“The rule that a directed verdict of guilty is invalid is enforced no matter how conclusive the evidence in the case may be. 1 While the judge in this

*852 case did not direct a verdict of guilty in form, that is the substantive effect of the instruction given. The rule against directed verdicts of guilt includes perforce situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true. As the Supreme Court said in Bollenbach v. United States, 326 U.S. 607, 614 , 66 S.Ct. 402, 406 , 90 L.Ed. 350 (1946), ‘the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials in the federal courts.’ See also Schwachter v. United States, 237 F.2d 640, 644 (6th Cir. 1956); United States v. Gollin, 166 F.2d 123, 127 (3d Cir.), cert. denied 333 U.S. 875 , 68 S.Ct. 905 , 92 L.Ed. 1151 (1948); Carothers v. United States, 161 F.2d 718, 722 (5th Cir. 1947).”

United States v. Hayward, 1969, 136 U.S.App.D.C. 300 , 420 F.2d 142, 144 .

The majority decision in the present case is, I submit, in conflict with our decision (Judges Jones, Gewin and Clark) in United States v. Skinner, 5 Cir. 1971, 437 F.2d 164 . The matter seems of such importance that I quote at length from Judge Jones’ able opinion:

“The effect of this instruction was to direct the jury to find Skinner guilty unless it appeared that he was lacking in mental capacity to commit the offense with which he was charged. A directed verdict of guilt is not permitted, and this is true even though a defense of insanity is raised.

“The guide to our decision is charted by one of the leading cases decided by this Court where it is said:

“ ‘A trial court has a wide latitude in commenting on the evidence during his instructions to the jury, but he has no power to direct a verdict of guilty. An instruction deciding a material fact issue as a matter of law adversely to the accused is regarded as a partial instructed verdict of guilty prohibited by the rule just stated. In United States v. Raub, supra [7th Cir., 177 F.2d 312 ] the Court reversed the conviction under the plain error rule where the jury was instructed that a material element of the offense was established as a matter of law.

“ ‘The appellant was entitled to have the question of whether there was an attempt to enter the bank for the purpose of robbing it submitted to the jury under appropriate instructions covering, among other things, the elements of this type of offense.’ Mims v. United States, 5th Cir. 1967, 375 F.2d 135 .

“The Court, in the Mims case, followed the principle announced in the earlier Edwards ease where it was said:

“ ‘Despite the strong evidence of guilt, we cannot hold that this erroneous charge was harmless. No matter how conclusive the evidence, a court may not direct a verdict of guilt. While this charge did not direct the jury to find the defendant guilty, it did take from the jury the question of Evans’ guilt.’ Edwards v. United States, 5th Cir. 1960, 286 F.2d 681 .

And, in another opinion, the Court has said:

“ ‘In the face of objections stated with precision and clarity complaining of the charge as a partial direction of a verdict of guilty and a failure to submit to the jury a crucial issue, the Court was obliged to take corrective steps so that the jury would clearly understand that it had three, not two, issues for decision. The failure to do this was a substantial and harmful error.’ Roe v. United States, 5th Cir. 1961, 287 F.2d 435 , cert. denied 368 U.S. 824 , 82 S.Ct. 43 , 7 L.Ed.2d 29 .

As in the Roe case, so in this case, the district court should have given the jury three choices of verdict, guilty, not guilty or not guilty by reason of insanity. *853 The recent decision in United States v. Martin, 5th Cir. 1970, 434 F.2d 275 , is not in conflict with the above decisions.

“The principles stated in the case of Mims v. United States, swpra,, require that the plain error rule of Rule 52(b) of the Federal Rules of Criminal Procedure, apply although no objection was made to the instructions as given. Only two choices were tendered to the jury, a verdict of guilty or a verdict of not guilty by reason of insanity. The jury was not told that it might reject the insanity defense of Skinner but nevertheless find that the elements of the offense had not been established beyond a reasonable doubt and if so, return a verdict of not guilty.

“Lord Coke is quoted as saying that reason is the life of the law. Charles Dickens, in Oliver Twist, had one of his characters say that the law is an ass. It may be that there are those in this day and time who would think it absurd for an appellate court to hold a trial court in error for failing to charge the jury that it might find a defendant not guilty of an offense which he did not deny having committed. Yet such is the law and reason is the life of the law.”

437 F.2d at 165, 166 .

The reasons for the rule are clearly stated by Chief Judge Aldrich of the First Circuit in an important recent case reversing the district court because it submitted special questions to the jury in addition to the general verdict of guilty or not guilty. Again, those reasons are of such extreme importance that I may be pardoned in quoting at length: “In civil trials the judge, if the evidence is sufficiently one-sided, may direct the jury to find against the defendant even though the plaintiff entered the ease bearing the burden of proof. F.R.Civ.P. 50. In a criminal ease a court may not order the jury to return a verdict of guilty, no matter how overwhelming the evidence of guilt. 38 This principle is so

well established that its basis is not normally a matter of discussion. There is, however, a deep undercurrent of reasons. Put simply, the right to be tried by a jury of one’s peers finally exacted from the king would be meaningless if the king’s judges could call the turn. 39

Bushel’s Case, 124 Eng.Rep. 1006 (C.P. 1670). In the exercise of its functions not only must the jury be free from direct control in its verdict, but it must be free from judicial pressure, both contemporaneous and subsequent. Commonwealth v. Anthes, 1857, 71 Mass. (5 Gray) 185, 209-210 ; Rex v. Larkin, [1943] K.B. 174; P. Devlin, Trial by Jury 14, 56, 75-91 (3d impr. with addendum, 1966); T. Plucknett, A Concise History of the Common Law 137-38 (5th ed. 1956); Howe, Juries as Judges of Criminal Law, 52 Harv.L.Rev. 582 (1939). Both have been said to result from the submission of special questions.

“ ‘It is one of the most essential features of the right of trial by jury that no jury should be compelled to find any but a general verdict in criminal cases, and the removal of this safeguard would violate its design and destroy its spirit.’

G. Clementson, Special Verdicts and Special Findings by Juries, 49 (1905).

“ ‘[T]he submission of special interrogatories, answers to which are to accompany the general verdict * * *, [began as an effort] to catechize a jury as to its reasons * *

Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 Yale *854 L.J. 575 , 592 (1923). See also Walker, The Finality of Jury Verdicts, 118 New L.J. 866 , 867-68 (1968). This merges into a more basic reason which the court noted but, because of special circumstances, did not accept in United States v. Ogull, S.D.N.Y., 1957, 149 F.Supp. 272, 276 , affirmed without discussion of this point, sub nom. United States v. Gernie, 2 Cir., 1958, 252 F.2d 664 , cert. denied, 356 U.S. 968 , 78 S.Ct. 1006 , 2 L.Ed.2d 1073 ,

“ ‘To ask the jury special questions might be said to infringe on its power to deliberate free from legal fetters; on its power to arrive at a general verdict without having to support it by reasons or by a report of its deliberations; and on its power to follow or not to follow the instructions of the court. Moreover, any abridgement or modification of this institution would partly restrict its historic function, that of tempering rules of law by common sense brought to bear upon the facts of a specific case.’

The cogency of this is so felt by Mr. Justice Black and Mr. Justice Douglas that they disapprove of special interrogatories even in civil cases. 40

“We are less concerned by the jury’s possible fear of subsequent criticism with respect to special findings than we are with the subtle, and perhaps open, direct effect that answering special questions may have upon the jury’s ultimate conclusion. There is no easier way to reach, and perhaps force, a verdict of guilty than to approach it step by step. A juror, wishing to acquit, may be formally catechized. By a progression of questions each of which seems to require an answer unfavorable to the defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted. The result may be accomplished by a majority of the jury, but the course has been initiated by the judge, and directed by him through the frame of the questions.

“It may be said that since the law should be logical and consistent, if the questions were proper in substance this would be a desirable rather than an undesirable result. We agree, however, with the distinction made by L. Hand, J., concurring in Skidmore v. Baltimore & O. Ry., 2 Cir., 1948, 167 F.2d 54, 70 , cert. denied, 335 U.S. 816 , 69 S.Ct. 34 , 93 L.Ed. 371 , when speaking in favor of special verdicts in civil cases.

“ T should like to subject a verdict, as narrowly as was practical, to a review which should make it in fact, what we very elaborately pretend that it should be: a decision based upon law. In criminal prosecutions there may be, and in my judgment there are, other considerations which intervene to make such an attempt undesirable.’

Uppermost of these considerations is the principle that the jury, as the conscience of the community, must be permitted to look at more than logic. Indeed, this is the principle upon which we began our discussion. If it were otherwise there would be no more reason why a verdict should not be directed against a defendant in a criminal case than in a civil one. The constitutional guarantees of *855 due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. See Morris v. United States, 9 Cir., 1946, 156 F.2d 525 .” [Emphasis added.]

United States v. Spock, 1 Cir. 1969, 416 F.2d 165, 180, 181, 182 .

Indeed my Brother Clark recognized the true rule in United States v. Ragsdale, 5 Cir. 1971, 438 F.2d 21, 27 , when he said:

“This Circuit is firmly committed to what appears to be the universal rule, that no matter how conclusive the evidence, a court may not direct a verdict of guilt in whole or in part. United States v. Skinner, 437 F.2d 164 (5th Cir. 1971). Any such instruction would amount to plain error which would be noticed, even though not assigned. Mims v. United States, 375 F.2d 135 (5th Cir. 1967).”

With the foregoing principles of law in mind, let us turn to the record to find whether the District Judge instead of the jury decided the question of interference with commerce.

The Hobbs Act “is directed at the protection of interstate commerce against injury from extortion.” United States v. Green, 1956, 350 U.S. 415, 420 , 76 S.Ct. 522, 526 , 100 L.Ed. 494 . Protection of commerce is the very gist of the crime, as the language of the statute makes clear: “Whoever in any way or degree obstructs, delays, or affects commerce * * * by * * * extortion * * * shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951 . As Mr. Justice Black wrote for a unanimous Court in Stirone v. United States, 1960, 361 U.S. 212, 218 , 80 S.Ct. 270, 274 , 4 L.Ed.2d 252 : “Here, as the trial court charged the jury, there are two essential elements of a Hobbs Act crime: interference with commerce, and extortion. Both elements have to be charged. Neither is surplusage and neither can be treated as surplusage.”

Because of the importance of the matter, at the risk of tedium, I quote at length from the record in order to demonstrate that from the beginning to the end of this trial the District Judge effectively deprived the jury of its role as the finder of the guilt of the defendants insofar as concerns that essential element of the crime, interference with commerce.

In the course of the Government’s reply to the opening statements of counsel for the defendants, the following occurred :

“MR. TAYLOR: May it please the Court, ladies and gentlemen, my name is Macey Taylor, Assistant to Mr. Weaver [the United States Attorney]. I will assist him in the prosecution of the case. I would like to reply, with the Court’s permission, to very few things that distinguished counsel said to you and they may have been inadvertently misleading.

“It is quite true that the effect on interstate commerce is an element of this offense, but each of us has a duty to perform in this case. Counsel will introduce evidence and make objections as was stated and you will be judges of the facts and the Court will make certain determinations. And I submit to you that it is the Court’s function and not yours to find, that — first that interstate commerce existed and that the act involved affected, impeded, or delayed interstate commerce.

“MR. REDDEN: We object to that incorrect statement of law, please the Court, because that might have to be found from disputed fact. That would be the province of the jury in every instance, not the Court.

“MR. TAYLOR: We submit it is the Court’s function to determine interstate commerce and its effect on it.

“THE COURT: At this time I will let it stand.

“MR. REDDEN: We except.

“MR. TAYLOR: In spite of what counsel told you, you might be vitally *856 concerned with all the facts in the case, you need not concern yourself with commerce, interstate commerce affected, impeded, or obstructed.

“MR. REDDEN: We object to that and move to exclude it, please the Court. That is simply incorrect with reference to the fact that they would have no function.

“MR. TAYLOR: Your Honor, that’s the court’s function.

“THE COURT: It may be. It is possible.

“MR. TAYLOR: Well, the Court will instruct you on the law of this ease. I believe he will instruct you that it is the Court’s function to determine whether or not interstate commerce has been established and affected or impeded or obstructed. If it hasn’t, he will take the case away from you.”

Thus, before the jury heard any evidence, it was informed by the United States Attorney, with the concurrence of the District Judge, that “you need not concern yourself with commerce, interstate commerce affected, impeded, or obstructed,” and further “I believe he will instruct you that it is the Court’s function to determine whether or not interstate commerce has been established and affected or impeded or obstructed.” The impression which these statements of Government counsel, tentatively approved by the Judge, inevitably had on the minds of the jurors was never removed throughout the six weeks trial. Was it not natural for the jurors to accept the invitation of the United States Attorney that “you need not concern yourself with commerce, interstate commerce, affected, impeded, or obstructed” ? Further the prediction of the United States Attorney that “he [the Judge] will instruct you that it is the Court’s function to determine whether or not interstate commerce has been established and affected or impeded or obstructed” turned out to be a true prophecy. In four separate parts of his charge to the jurors, the District Judge instructed them precisely as had been predicted by Government counsel:

(1) “Now, Ladies and Gentlemen of the jury, it is the duty of the Court and not the jury to determine whether the government’s evidence, if believed, establishes that interstate commerce was affected by the conduct of the defendant so as to bring the activities of the defendants within the scope of the Hobbs Act and sustain federal jurisdiction.

“I instruct you that if you find from the evidence, beyond a reasonable doubt, that a conspiracy existed as charged in Count One or in Count Two or in both Counts One and Two of the indictment, and that one of the overt acts charged in each count was committed, that the Court has found, as a matter of law, that the requirements of the Hobbs Act under Section 1951 of Title 18 of the United States Code have been met as to interstate commerce being affected.” (App. p. 298)

(2) “Now, as to Count Three, I charge you that if you find from the evidence, beyond a reasonable doubt, one or more of the defendants named in this count, to be guilty as charged, the Court has found, as a matter of law, that the requirements of the Hobbs Act, that interstate commerce has been affected, has been met by the government’s evidence, if believed.” (App. p. 299)

(3) “As to Count Four, I charge you that if you find one or more of the defendants named in this count to be guilty from the evidence presented to you, beyond a reasonable doubt, the Court has found, as a matter of law, that the evidence in connection with Count Four, if believed, meets the requirements of Title 18, Section 1951, United States Code, insofar as the conduct of the defendants having affected interstate commerce, and thereby sustaining the Court’s jurisdiction within the scope of the Hobbs Act.” (App. p. 301)

*857 (4) “Now, extortion and commerce, as defined in the statute, are essential elements of proof that the government must meet before an offense can be proven under Title 18, Section 1951.

“Whether or not commerce has been affected is a matter of law for the Court to determine from the evidence, if believed.

“The proof of extortion by the evidence beyond a reasonable doubt is a matter for you, the jury, to determine.” (App. p. 310-311)

Lawyers, as well as jurors, know that cases do arise in which questions of fact are for the determination of the trial judge and not of the jury. For example, statutes and decisions of other states are facts to be proved. Eastern Building and Loan Assn. v. Williamson, 1903, 189 U.S. 122, 126, 127 , 23 S.Ct. 527 , 47 L.Ed. 735 . Nonetheless, it is the function of the trial judge instead of the jury to determine the state of the foreign law from the proof presented on that issue. Finney v. Guy, 1903, 189 U.S. 335, 342, 343 , 23 S.Ct. 558 , 47 L.Ed. 839 ; Liechti v. Roche, 5 Cir. 1952, 198 F.2d 174, 177 ; Daniel Lumber Co. v. Em-presas Hondurenas, S.A., 5 Cir. 1954, 215 F.2d 465, 469, 470 . Accord, Rule 26.1, Fed.R.Crim.P., added Feb. 28, 1966. Somewhat similarly, where decision of a question of domestic law by a trial court depends on an inquiry into surrounding facts and circumstances, the court must refuse to grant summary judgment until the facts and circumstances have been sufficiently developed to enable the court to be reasonably certain that it is making a correct determination of the question of law. Palmer v. Chamberlin, 5 Cir. 1951, 191 F.2d 532, 540 .

Thus, in the present case, the District Judge and the Government seem to have been laboring under the delusion that the issue of interference with commerce went to the jurisdiction of the court, and hence was for the court to decide. The majority opinion begins its discussion of the sufficiency of the evidence on interference with interstate commerce with the statement that “The defendants urge on appeal that this jurisdictional element was not proved below” (emphasis added, see opinion p. 835), and in its discussion states that “this is a jurisdictional element for which the court has a great responsibility” (opinion p. 839). With deference, I submit that at the eviden-tiary stage of a trial, proof of that issue goes to the court’s jurisdiction only in the same sense as proof of the other issue, extortion. That is to say, if there were no evidence whatever to support either issue the conviction of the defendants would be a violation of due process. Thompson v. Louisville, 1960, 362 U.S. 199 , 80 S.Ct. 624 , 4 L.Ed.2d 654 . At the evidentiary stage of the trial there is nothing unique about the commerce issue as a “jurisdictional element.” In support of the statement made in the preceding sentence, it may be best to explain at length the basis of my dissenting view.

The district courts of the United States have original jurisdiction of all offenses against the laws of the United States. 18 U.S.C. § 3231 . Extortion, in the sense of obtaining money or some other thing of value by a misuse of official power or position, is a well-recognized common-law crime. 35 C.J.S. Extortion § 1, p. 355; 31 Am.Jur.2d Extortion, Blackmail, etc., § 3, p. 902. Of course “there are no common law offenses against the United States and therefore the only federal crimes are those explicitly prescribed by Congress.” 1A Moore’s Federal Practice, 2d ed., If 0.323 [5], p. 3734. Congress has the power under the Constitution to regulate commerce among the several states, with foreign nations, and within the District of Columbia or any territory or possession of the United States. Acting under this broad commerce power, Congress enacted the Hobbs Act, 18 U.S.C. § 1951 . Thus, in this case there is no doubt that the District Court was vested with jurisdiction of the subject matter, that is, to try persons charged with violation of the Hobbs Act.

*858 Jurisdiction to try and punish for the particular crimes charged was vested in the District Court by the return of the indictment. Albrecht v. United States, 1927, 273 U.S. 1, 8 , 47 S.Ct. 250 , 71 L.Ed. 505 ; 22 C.J.S. Criminal Law § 143. The defendants submitted themselves to the jurisdiction of the Court. Thus, by the time the trial commenced the District Court had been vested with jurisdiction both of the offense and of the persons of the defendants.

It is hornbook law that, “Generally, the jurisdiction of a court depends on the state of facts existing at the time it is invoked, and once a court obtains jurisdiction of the person of the accused and of the subject matter, it retains the same until final ■ disposition or determination of the case in accord with the law.” 22 C.J.S. Criminal Law § 165, p. 422.

True, when a court having jurisdiction of the subject matter and of the accused denies to the accused a basic constitutional right such as due process of law, its jurisdiction ceases and its acts are void. But there is no claim here that the Court has thus undermined the jurisdiction vested in it at the commencement of the trial.

Why then is the sufficiency of the evidence as to the effect on interstate commerce placed in a different category as a “jurisdictional element” which falls within the province of the judge to decide? Why is not that element for the jury to decide precisely the same as the element of extortion vel non? Both elements go to the substance of the federal crime. If the jury finds no extortion, then no crime, state or federal, has been proved. If the jury finds no interference with commerce, then no federal crime has been proved.

True, the Federal Government’s jurisdiction of this crime rests on interference with commerce. But such interference had been adequately charged in the indictment, and jurisdiction would not be lost if the jury determined the facts of such interference in favor of the accused. That would amount simply to a failure to convince the jury of the defendants’ guilt beyond a reasonable doubt. In short, the “jurisdictional” nexus of the commerce element does not permit the District Judge to deprive the jury of its role in finding the facts regarding interstate commerce.

In objecting to the instructions which have been quoted at length, the defendants fully complied with Rule 30, Fed.R. Crim.P.

“MR. REDDEN: Please the Court, on behalf of each defendant, separately and severally, we except to that portion of Your Honor’s oral charge wherein Your Honor stated that if you find from the evidence, stated this in substance, if you find from the evidence beyond a reasonable doubt that a conspiracy existed as charged in Count One and in Count Two of the indictment, and that an overt act in furtherance of the object of that conspiracy was committed as to each of those counts, the Court has found, as a matter of law, that interstate commerce has been affected. We further except along the same line to substantially the same statement made with reference to Count Three and Count Four. Of course, Your Honor rephrased it because those are substantive counts as opposed to conspiracy charges, saying, in substance, I think, that if you are convinced beyond a reasonable doubt that one or more of the defendants is guilty of extortion as charged in said count, the requirements of the Hobbs Act have been met by the evidence if believed; on this ground, that the Court has charged the jury, and I think one time in one of the statements with reference to some count, that it was not predicated on the words if believed.

“THE COURT: Yes.

“MR. REDDEN: I think the import of what Your Honor has said eliminates from the mind of the jury that they have the prerogative, if they do not believe the evidence relative to the existence of commerce or any affect on commerce, affect on commerce, to reject that evidence. I would feel that *859 under this instruction they wouldn’t think that they had that right.

“THE COURT: I underlined, if believed, on all four and bore down on it. I would overrule your objection to it. “MR. REDDEN: All right, sir.”

(App. 324, 325)

The majority concedes that, “The defense attorneys did object that the court had not made clear to the jury that it was to determine the existence of the facts.” (Opinion, p. 842.) Nonetheless the majority opinion comments: “none of the proposed charges submitted by the defendants contained such an enumeration [of the interstate commerce facts].” (Opinion, p. 842.) Having complied with Rule 30, no duty rested on defense attorneys to propose charges which might or might not cure the District Court’s error. As expressed in Rule 51, Fed.R.Crim.P.: “[I]t is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor.” Indeed the error of the Court in itself deciding one of the elements of guilt is so fundamental that even if the defendants had failed to comply with Rule 30, the error would have to be recognized under Rule 52(b), Fed.R. Crim.P., the plain error rule. Mims v. United States, 5 Cir. 1967, 375 F.2d 135, 148 ; United States v. Skinner, supra; United States v. Ragsdale, supra.

Each of the four separated jury instructions, heretofore quoted, ante pp. 856-857, uses the identical expression “if believed.” When confronted with the objection that “the import of what Your Honor has said eliminates from the mind of the jury that they have the prerogative, if they do not believe the evidence relative to the existence of commerce or any affect on commerce * * to reject that evidence, * * * under this instruction they wouldn’t think that they had that right,” the District Judge responded, “I underlined, if believed, on all four and bore down on it” (App. p. 325), and again, “Now, I point out to you that on each one of the instructions as to interstate commerce I have underlined, in red, if believed.” (App. p. 328) The Court’s explanations for overruling the objections of defendants’ attorney were of course made while the jury was absent. The jury did not take the charge with them and had no means of knowing that the Judge had underlined in red “if believed.” Even if the jurors had seen the red underlining or had heard some vocal emphasis, which the record cannot reproduce, placed on the words “if believed,” they could not equate such an instruction with “if believed by the jury” or “if believed beyond a reasonable doubt by the jury.” Not once was the jury instructed that the jurors were the ones who would have to entertain such a belief. With deference, I submit that the majority is in error when it says, “He [the District Judge] explained to the jurors that they were to determine whether they ‘believed’ the prosecution’s evidence with regard to interstate commerce.” (App. p. 36) The only source which the majority gives for that statement is: “In light of earlier instructions in the charge describing the role of the court as law-giver and the role of the jury as fact-finder, the phrase ‘if believed’ underscores the court’s careful efforts to have the jury understand the nature of its function.” (Opinion, p. 842.) The “earlier instructions” so referred to consisted of no more than the usual boilerplate instructions, such as:

“You are judges of the facts, and it is your duty and function to determine the facts in this case without prejudice, fear or favor, and solely from a fair consideration of the evidence presented to you here in this courtroom.

* * * * -X- *

“Now, the evidence presented to you should be considered and viewed by you in the light of your own observations and experience in the affairs of your own lives.

“If during the trial you may think the Court has in dny way intimated any opinion as to the facts, you are not *860 bound by that opinion. The jury alone is the sole and exclusive judge of the facts.

“You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You should carefully scrutinize the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether the witness is worthy of belief. Consider each witness’s intelligence, motive and state of mind, and demeanor and manner while on the stand. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence.” (App. 290, 291, 295)

Potent as those general instructions may have been, they make no special reference to the subject of interstate commerce. The particular should prevail over the general. In addition, the Court’s instructions left uncorrected the observations of the United States Attorney in his opening statement and the District Judge’s rulings on those remarks, quoted supra, p. 856-857.

Further, the jurors were led to believe that the District Court’s general instructions had no application to the interstate commerce question, by such repeated instructions as:

“ * * * it is the duty of the Court and not the jury to determine whether the government’s evidence, if believed, establishes that interstate commerce was affected by the conduct of the defendant * * *.

******

“* * * court has found, as a matter of law, that the requirements of the Hobbs Act, that interstate commerce has been affected, has been met by the government’s evidence, if believed.

******

« * * * the Court has found, as a matter of law, that the evidence in connection with Count Four, if believed, meets the requirements of Title 18, Section 1951, United States Code, insofar as the conduct of the defendants having affected interstate commerce * * *

* vS- *

“Whether or not commerce has been affected is a matter of law for the Court to determine from the evidence, if believed.” (App. 298, 299, 301, 310)

None of the Hobbs Act cases on which the majority relies go anything like so far as did the District Judge toward depriving the jury of its role in finding the facts regarding interstate commerce. The genesis of that line of cases is the holding in Nick v. United States, 8 Cir. 1941, 122 F.2d 660 , 673:

“The second item (assignment 29 (i)) is directed at a statement by the court that ‘if the evidence of the witnesses outlining the effect of stoppage of the motion picture industry in St. Louis is to be believed and is believed by you, the result, of course, is direct and substantial interference with or effect upon interstate commerce.’ The criticism is that this is an improper comment upon the evidence and is argumentative in that it states to the jury that if they believe certain evidence they must believe that there is direct and substantial interference with interstate commerce. There is no proper basis for this criticism. It is not for the jury to determine what is or what is not interstate commerce —that is a question of law. It is for the court to charge the jury that if certain facts covered by the evidence are shown then there is such interference. This is what the court stated and its statement is proper.” [Emphasis added.]

Following that holding, the Eighth Circuit in Hulahan v. United States, *861 1954, 214 F.2d 441, 445 , approved the following instructions:

“ T charge you, as a matter of law, that if you believe the testimony of the Government witnesses with reference to the federal jurisdictional element of interstate commerce involved in this case, that is to say, the Government’s testimony with reference to the bringing of various materials, commodities, and equipment, from out of state to the job sites in question in this federal judicial district, then you are instructed that defendant’s activities as shown by the Government’s testimony, if you believe the same, did delay, obstruct and affect interstate commerce as that language is used in the statutes under which these charges are brought. That is to say, if you find the facts to be as testified to by the Government witnesses, the Court has determined as a matter of law that there has been a substantial affect on interstate commerce shown here by the United States and that question is not for your determination. However, before you can find the defendant guilty under any or all of the counts in the indictment you must find beyond a reasonable doubt that the defendant has extorted money or property or conspired so to do, as those terms are defined in the statute and other instructions given you by the Court.’ ” [Emphasis added.]

Relying on Hulahan , the Second Circuit approved a “virtually identical” instruction. United States v. Varlack, 1955, 225 F.2d 665, 670, 671, 672 .

In United States v. Lowe, 3 Cir. 1956, 234 F.2d 919, 922, 923 , it was said:

“The next problem raised by the appellant presents a question of law. He complains of the original instructions by the court and certain supplemental instructions given because these instructions did not leave to the jury the determination of whether the alleged conduct by the defendant affected commerce or the movement of any article in commerce. There was testimony in the case concerning the part which this piece of pipe line played in a gas distribution system which had its origin in Texas. There was testimony to the effect that this particular piece of line was connected to a meter which was part of the main line from the source of supply. The trial judge mentioned these statements to the jury and said ‘if believed by you beyond a reasonable doubt [they] satisfy the necessary federal jurisdictional element of interstate commerce under the law under which this indictment is drawn.’ In this instruction the judge was following Hulahan v. United States, 8 Cir., 1954, 214 F.2d 441, 445 , certiorari denied 348 U.S. 856 , 75 S.Ct. 81 , 99 L.Ed. 675 , as closely as though he had had the report on the desk before him when he charged the jury. We have no doubt that he was right. The position taken in the Hulahan ease is strengthened by the decision of the Second Circuit in United States v. Varlack, 1955, 225 F.2d 665, 670 .” [Emphasis added.]

The holding of the Seventh Circuit in United States v. Green, 1957, 246 F.2d 155, 160, 161 , following the Eighth Circuit’s decision in Nick and Hulahan :

“At the close of the evidence the trial court gave the following instruction to the jury: ‘[The charge] is a violation by force or threatened force, intimidation of workers or persons concerned in the construction of what is alleged to have been an interstate commerce highway. That is the charge and that is the matter which you must decide here. Now so far as this being an interstate commerce tramway or highway or whatever we may desire to call it, if you believe the testimony of the Government witnesses, it is unquestionably an interstate commerce highway. * * * ’ It was clearly the function of the court to determine whether interstate commerce was affected and whether the court had jurisdiction under the Act. As stated in Hulahan v. United States, supra, 214 F.2d at page 446 : ‘We think it was for the court, and not the jury, to determine whether the Government’s *862 evidence, if believed, would bring the activities of the defendant within the statute and sustain federal jurisdiction.’ See also Nick v. United States, 8 Cir., 122 F.2d 660, 673 , 138 A.L.R. 791” [Emphasis added.]

Thus each of the cases in this line, which the District Court attempted to follow, clearly and expressly left to the jury the question of whether it believed the testimony of the Government witnesses regarding interstate commerce, while in the present case the effect of the District Court’s rulings, from the opening statements of counsel to the final instructions by the Court, was to direct the jury to find for the United States as to that element of the crime.

It is thus not necessary for me to express disagreement with Nick, supra, and its progeny. Nonetheless, with extreme deference, I do disagree with Hu-lahan’s expansion of the Nick doctrine, for reasons which have already become apparent. At the evidentiary stage of the trial, jurisdiction was already firmly vested in the trial court, and it was not for the Court to determine whether the Government’s evidence, if believed, would bring the activities of the defendants within the statute. Instead, it was the function of the jury to determine the guilt of the defendants as to each and all of the elements of the federal crime. Further, whether commerce was in any way or degree obstructed, delayed, or affected is not a pure question of law, but is a mixed question of law and fact, upon which the jury should have the final say in its verdict. Lastly, and of utmost importance, I submit that when the court is permitted to charge the jury that, if it believes the Government’s evidence, an element of the crime has been established, there occurs a breach in that great bulwark of liberty so effectively established by the constitutional right to be tried by a jury. If that constitutional guaranty is to be preserved intact, the court should charge the jury as to the law, and leave to the jury the application of the law to the facts. In fact as well as in form, a defendant should not be convicted of any element of a crime unless and until the jury returns its verdict of guilt.

Of course, I make no attempt to revive the democratic theory that the jury in criminal cases should not only determine the facts but judge the law as well. That question was authoritatively settled as far back as 1895 in Sparf and Hansen v. United States, supra, 156 U.S. 51 , 15 S.Ct. 273 , 39 L.Ed. 343 . As explained in Howe, “Juries as Judges of Criminal Law,” 52 Harv.L.R. at 588, 589:

“In that case the Supreme Court was first called upon conclusively to dispose of a problem which for more than one hundred years had been discussed and litigated in the lower federal courts. The majority of the court, in a fifty-five page opinion written by Mr. Justice Harlan, held that the jury is bound, in criminal as in civil cases, to follow the judge’s instructions on all matters of law. In a dissenting opinion of some seventy-three pages Mr. Justice Gray, with Shiras, J., concurring, elaborately and painstakingly examined the state and federal decisions concerning the question and determined that it was preferable, historically and politically, to acknowledge that the jury had a right in criminal cases to disregard the court’s instructions.”

Since the decision in Sparf and Hansen, it has been true in federal and most other American courts that the jury’s right to return a general verdict in criminal cases gives it a naked power, but not a moral or legal right to determine the law upon its own initiative regardless of the court’s instruction. 52 Harv. L.R. 584. The majority decision in the present case not only seeks to destroy that “power” of the jury but goes much further and substitutes the judge for the jury as the finder of facts. To swing the judicial pendulum that far is, I submit, in clear violation of the defendants’ constitutional rights.

In addition to the foregoing extravagantly long dissent, I have strong misgivings as to the composition both of the *863 grand jury and of the petit jury, but shall refrain from elaborating. With the remaining parts of the majority opinion, I am in substantial agreement. I dissent from the judgments of affirmance.

"1 ‘Despite the strong evidence of guilt we cannot hold that this erroneous charge was harmless. No matter how conclusive the evidence, a court may not direct a verdict of guilt. While this charge did not direct the jury to *852 find the defendant guilty, it did take from the jury the question of [his] guilt.’ Edwards v. United States, 286 F.2d 681, 682 (5th Cir. 1960).

“38. United Brotherhood of Carpenters and Joiners of America v. United States, 1947, 330 U.S. 395, 408 , 67 S.Ct. 775 , 91 L.Ed. 973 ; Sparf v. United States, 1895, 156 U.S. 51, 105-106 , 15 S.Ct. 273 , 39 L.Ed. 343 ; Compton v. United States, 8 Cir., 1967, 377 F.2d 408, 411 ; Edwards v. United States, 5 Cir. 1960, 286 F.2d 681, 683 ; United States v. Taylor, C.C.D.Kan., 1882, 11 F.470, 474.

“39 . Indeed, under our law a jury’s verdict, representing the common sense and wisdom of the community, is so highly regarded that the government itself may insist on trial by jury rather than trial by judge. Singer v. United States, 1965, 380 U.S. 24, 36 , 85 S.Ct. 783 , 13 L.Ed.2d 630 .

“40. ‘Such devices are used to impair or wholly take away the power of a jury to render a general verdict. One of the ancient, fundamental reasons for having general jury verdicts was to preserve the right of trial by jury as an indispensable part of a free government. Many of the most famous constitutional controversies in England revolved around litigants’ insistence, particularly in seditious libel cases, that a jury had the right to render a general verdict without being compelled to return a number of subsidiary findings to support its general verdict. Some English jurors had to go to jail because they insisted upon their right to render general verdicts over the repeated commands of tyrannical judges not to do so. Rule 49 is but another means utilized by courts to weaken the constitutional power of juries and to vest judges with more power to decide cases according to their own judgments.’

Statement of Mr. Justice Black and Mr. Justice Douglas on the Rules of Civil Procedure and the Proposed Amendments, 31 F.R.D. 617 , 618-619 (1963).