Petition — Mazzei v. United States
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Supreme Court. U; S,
FILED
AUG 28 1975
MICHS Pr or
IN THE
Supreme Court of the United States
October Term, 1975.
No. 75-313
FRANK MAZZEI,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
JoHN Rocers CaRRo..,
Suite 326,
Three Penn Center Plaza,
Philadelphia, Pennsylvania. 19102
Counsel for Petitioner.
International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711
TABLE OF CONTENTS.
Creation TO OPINDONS BELOW ..... cc cccccccccccsccscees 1
} PPPPPTTTTITITITITITITITTT ITT 2
Tees Qumewees PRRGRNTED 2... cccccccccdcccccccccscces 2
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ...... 3
I Oe ON D5 o ccda pu Wanadneebenseséecbenes 5
REASONS FOR GRANTING THE WRIT ............--eeeeeeeee 9
I. The Extortion Issue Is One of First Impression Na-
ED £566 bd cenenddbesccdeasethevieneasecens 9
II. The Court of Appeals Has Ignored This Court’s De-
cisions Urging Narrow Construction of Federal
Se Ei hidnsin ceanenevecedeeesses 11
III. The Depletion of Assets Theory of Interstate Com-
merce Violates the Commerce Clause and Appears
at Variance With Prior Decisions of This Court 12
ID. «on. ce din ohh nde bebe dnnenededevdewenscuase 14
ApPENDIx A—Opinion of the Court of Appeals ............ Al
ApPEeNDIx B—Opinion of the District Court .............. A33
TABLE OF CITATIONS.
Cases: Page
Allenberg Cotton Co., Inc. v. Pittman, — U. S. —, 42 L. ed.
2d 195 (1974) cc ccccceec cece cen e center eeeeeeeenees 13
Erlenbaugh v. U. S., 409 U. S. 239 (1972) ...---+eseeeees 11
Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23 (1824) .......-. 13
Heart of Atlanta Motel v. U. S., 379 U. S. 241 (1964) ..... 12, 13
Katzbenbach v. McClung, 379 U. S. 294 (1964) ........--. 13
N. L. R. B. v. Jones and Laughlin Steel Corpor ‘on, 301 U. S.
1 (1987) ...ccccccccccccccccccccccccccscecccccceess 13
Rewis v. U. S., 401 U. S. 808 (1971) ...... cece cece ee eeeee 11
10 East 40th St. Building v. Callus, 325 U. S. 578 (1945)... 12
U. S. v. Addonizio, 451 F. 2d 49 (3rd Cir. 1971) ........... 7,9
U. S. v. Amabile, 395 F. 2d 47 (7th Cir. 1968) ............ 13
U. S. v. Bass, 404 U. S. 336 (1973) ......ceeceeeeeeccees 11
U. S. v. Braasch, 505 F. 2d 139 (7th Cir. 1974) ........... 10
U. S. v. DeMet, 486 F. 2d 816 (7th Cir. 1973) ............ 14
United States v. Enmons, 410 U. S. 396 (1973) ........... ll
United States v. Kenny, 462 F. 2d 1205 (3rd Cir. 1972) ... 9
U. S. v. Nardello, 393 U. S. 286 (1969) ........--eeeeee 10
U. S. v. Provenzano, 334 F. 2d 678 (3rd Cir. 1964) ........ 7
U. S. v. Staszceuk, 502 F. 2d 875 (7th Cir. 1974) ........... 10
Constitution and Statutes:
SE Aen ee eR apap rope Le mae: 3
Hobbs Act, 18 U. S. C. § 1951 (1948) ..........0000e. 2, 3,9, 12
Travel Act, 18 U. S. C. $1952 (1970) ............0cceeees 10
ES aS EERE RED rey SPP ETE aor te 5
NE aD SS SR AP a Rice AAA a RN 2
oon eye oe
IN THE
Supreme Court of the United States
Octoser Term, 1975.
No.
FRANK MAZZEI,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
Petitioner prays that a Writ of Certiorari issue to re-
view the judgment of the United States Court of Appeals
for the Third Circuit entered on July 29, 1975.
CITATION TO OPINIONS BELOW
The Opinion of the District Court for the Western
District of Pennsylvania is printed in Appendix B hereto
and is reported at 390 F’. Supp. 1098 (W. D. Pa. 1975). The
Opinion of the Court of Appeals for the Third Circuit is
not yet officially reported but is printed in Appendix A
hereto.
2 Petition for Writ of Certiorari
JURISDICTION.
The judgment of the Court of Appeals, printed in Ap-
pendix A hereto, was made and entered on July 29, 1975.
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
THE QUESTIONS PRESENTED.
I. Whether the Hobbs Act (18 U. S. C. A. 1951(b)(2))
definition of extortion: ‘‘The obtaining of property from
another with his consent, ... under color of official right’’
was intended by Congress to be applied to the conduct of a
person having no official position in or control over a State
Executive Branch Department accepting money as pay-
ment for having exercised merely political influence over
two decisions by such Executive Department granting
State leases to the payor.
II. Whether the Hobbs Act may be constitutionally
applied to purely intrastate activities, i.e., accepting money
for the use of political influence to obtain two State leases
of realty within the State on behalf of a Pennsylvania
corporation solely on the theory that subsidiaries of that
corporation doing business in interstate commerce were
adversely affected by the resulting ‘‘depletion of assets’’
of the parent company.
P TNs.
PRL OO aE
dee eai lela rerer
Petition for Writ of Certiorari 3
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED.
The Constitutional provision involved is Article I, Sec-
tion 8, Clause 3, of the United States Constitution, which
provides :
‘*The Congress shall have Power to... regulate Com-
merce with foreign Nations, and among the several
States ...’’
The Statute involved is the Hobbs Act, 18 U. S. C.
§ 1951 (1948). It provides:
“$1951. Interference with commerce by threats or
violence.
(a) Whoever in any way or degree obstructs, de-
lays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or ex-
tortion or attempts or conspires so to do, or commits
or threatens physical violence to any person or prop-
erty in furtherance of a plan or purpose to do anything
in violation of this section shall be fined not more than
$10,000 or imprisoned not more than twenty years, or
both.
(b) As used in this section—
(1) The term ‘robbery’ means the unlawful
taking or obtaining of personal property from the
person or in the presence of another, against his
will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to
his person or property, or property in his custody
or possession, or the person or property of a rela-
tive or member of his family or of anyone in his
company at the time of the taking or obtaining.
(2) The term ‘extortion’ means the obtain-
ing of property from another, with his consent,
Petition for Writ of Certiorari
induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official
right.
(3) The term ‘commerce’ means commerce
within the District of Columbia, or any Territory
or Possession of the United States; all commerce
between any point in a State, Territory, Posses-
sion, or the District of Columbia and any point
outside thereof; all commerce between points
within the same State through any place outside
such State; and all other commerce over which the
United States has jurisdiction.
(c) This section shall not be construed to repeal,
modify or affect section 17 of Title 15, sections 52, 101-
115, 151-166 of Title 29 or sections 151-188 of Title 45.
June 25, 1948, c. 645, 62 Stat. 793.”’
8
Petition for Writ of Certiorari 5
STATEMENT OF THE CASE.
Petitioner was at all times relevant to this Indictment
a Pennsylvania State Senator who now stands convicted in
the United States District Court for the Western District
of Pennsylvania on two counts of an Indictment charging
that he extorted approximately $20,000 from B. M. L, Ince.
in return for using his influence to obtain for B. M. I. two
leases from the Department of Property and Supplies of
the Commonwealth of Pennsylvania of space in a building
owned by a B. M. I. through a subsidiary in Pittsburgh,
Pennsylvania. The basis for Federal jurisdiction in the
Court of first instance is 18 U. S. C. § 3231.
The evidence, viewed in the light most favorable to
the prosecution, shows that B. M. I. purchased a building at
700 Bingham Street, Pittsburgh, Pennsylvania in March
1967. Most of this building remained vacant for several
years thereafter and mortgage payments, insurance and
municipal taxes, plus maintenance costs and depreciation,
were a continued, substantial drain on the assets of the
corporation. The corporation itself only occupied 4000 of
60,000 square feet of the building, which it used as the
center of its accounting operation for 16 subsidiaries en-
gaged in the business of selling refractory materials and
products in interstate commerce.
The Corporate Secretary of B. M. L, Leo Kelly, made
inquiry of a banker in the fall of 1971 about the possibility
of obtaining City, County or State tenants for the unused
portion of his building. The banker in turn introduced Mr.
Kelly to Senator Mazzei who, at a later meeting, advised
Mr. Kelly that it was the practice of all State leases that
ten percent of the gross rental is paid to a Senate Re-
election Committee for senators of both parties (R 106A).
Senator Mazzei also advised Mr. Kelly of the maximum
State rental figures. The premises were later inspected and
accepted by officials of the Executive Branch of the State
Government concerned and in due course Mr. Kelly executed
6 Petition for Writ of Certiorari
a lease to the State and thereafter paid petitioner a sum
equal to ten percent of the gross rental.
The second transaction, covered by Count II of the
Indictment, was handled identically and involved a lease to
the Pennsylvania Department of Labor and Industry for a
five-year period and the payment of 10% was again made
to petitioner after execution of the lease by the Common-
wealth and the lessor corporation.
The testimony of Mr. Kelly as a witness for the Govern-
ment was that he made the payments because petitioner
asked for them; that the building had been an economic loss
and it was a good business decision from his point of view
(145a-146a). Mr. Kelly candidly stated he did not regard
his ten percent payments as a political contribution (177a)
and no attempt was made to deduct them from Corporate
taxable income (181a-182a).
Mr. Kelly was quite clear in his testimony that he never
paid petitioner to perform any service in the Legislature
(189a); that the money was not regarded as having been
paid to petitioner to accomplish something he was elected to
do (190a) and that he would not have paid petitioner for
performance of any legislative duty (191la-192a). Mr.
Kelly said that he was simply using petitioner’s influence
‘*to steer business his way’’ and he described the payments
as being, in his mind, the equivalent of a real estate com-
mission (197a).
The President of B. M. L, Inc., Lawrence Williams,
said he believed the money was for a reelection fund (224a).
He was aware that at the time of each of the payments the
leases involved had already been signed, sealed and de-
livered (226a-227a). But in Mr. Williams’ view, the pay-
ment ‘‘. . . seemed like the reasonable thing to do’’ (221a-
222a).
Witnesses representing the Commonwealth of Penn-
sylvania stated the terms of the leases were fair and
reasonable.
Petition for Writ of Certiorari 7
The District Court submitted the case to the jury on
the issue of interstate commerce on the theory that com-
merce could have been found to be affected if the conduct of
the defendant resulted in depletion of the assets of the cor-
poration and thus to some degree adversely affected inter-
state commerce (373a(8)(9)) (N. T. 939-940). The Court
of Appeals sustained the Government’s position on this
theory, holding that ‘‘this position accords with our pre-
vious holdings that where the resources of an interstate
business are depleted or diminished ‘in any manner’ by
extortionate payments, the consequent impairment of
ability to conduct an interstate business is sufficient to bring
the extortion within the play of the Hobbs Act. United
States v. Addonizio, 451 F. 2d 49 (3rd Cir. 1971), cert.
den., 405 U. S. 936 (1972); U. S. v. Provenzano, 334 F. 2d
678 (3rd Cir. 1964), cert. den., 379 U. S. 947 (1964).’’ The
Court held that ‘‘Despite the local character of the lease
transactions’’ the funds available to B. M. I. for use in the
interstate activities of its subsidiaries were diminished
‘‘and its interstate business must to this extent be cur-
tailed.’’ (Ops. p. 5).
The Court of Appeals added:
‘‘We do not consider that the absence of effect
on interstate commerce is shown by the fact that B. M. I.
had a net cash inflow by reason of entering into the
leases. Although B. M. I. undoubtedly used defend-
ant’s influence to put itself in a position where the
award of State leases was likely, at that point it had
the right to receive the full rental, described by State
officials as completely reasonable, without paying the
defendant some $20,000. to insure that the lease op-
portunities were not lost.’’ Slip Opinion, page 6, n. 1.
As to the extortionate nature of the defendant’s con-
duct, the Court of Appeals, conceding that ‘‘defendant had
no statutory power as a state senator to control the grant-
ing of leases by state executive agencies,’’ nevertheless
8 Petition for Writ of Certiorari
sustained the conviction on the ground that the jury could
have concluded that ‘‘Kelly held, and 4efendant exploited,
a reasonable belief that the state system so operated that
the power in fact of defendant’s office included the effec-
tive authority to determine recipients of the state leases
here involved.’’ (Ops. p. 7)
Defendant was sentenced in the District Court to im-
prisonment for a period of five years, a fine of $10,000. and
removal from office. The Court of Appeals modified that
judgment by reversing the removal from office and other-
wise affirmed. Hence, this Petition.
Petition for Writ of Certiorari 9
REASONS FOR GRANTING THE WRIT.
I. The Extortion Issue Is One of First Impression Nation-
ally.
Judge Gibbons, joined by Judge Aldisert, dissenting
in the Court of Appeals below states:
‘*This case, which is one of first impression na-
tionally at the Appellate level, requires us to explore
the reach of The Hobbs Act’s proscription of extor-
tion.’’ (18 U.S. C. 1951(a)).
The majority of the Court of Appeals has held that
mere influence peddling by one who has no actual decisional
power is extortion under color of official right within the
meaning of The Hobbs Act. The majority reaches this
conclusion by way of the argument that if petitioner cre-
ated a reasonable belief in the mind of the payor that the
power of his legislative office included the effective au-
thority to determine recipients of state leases, petitioner
wonld have acted ‘‘under color of official right.’’ The ma-
jority appears to acknowledge that this departs from the
common law definition of extortion which involves the
unlawful acceptance of money under color of the office
actually held by the extortionist. There is neither statu-
tory nor decisional support for this position and the ma-
jority relies primarily on two of its prior decisions which
involved widespread official conspiracies in the cities of
Newark and Jersey City in which each defendant was con-
victed of conspiring with the relevant officeholder who
actually possessed the decisional power for which payment
was made. United States v. Kenny, 462 F. 2d 1205 (3rd
Cir.) cert. den. 409 U. S. 914 (1972) ; United States v. Ad-
donizio, 451 F. 2d 49 (3rd Cir.) cert. den. 405 U. S. 936
(1972).
In passing, the Court of Appeals overrules that part
of its holding in Addonizio that ‘‘while the essence of
bribery is voluntariness, the essence of extortion is
10 Petition for Writ of Certiorari
duress’’. 451 F. 2d at 472. The Court of Appeals substi-
tutes for this holding a statement that the element of
coercion is supplied by the misuse of the defendant’s official
power. We would not quarrel with that statement if this
were a case in which petitioner actually possessed relevant
official power or were in conspiracy with the person who
held the relevant office, but, as applied to a petitioner who
neither has nor pretends to have decisional power, the
holding is a marked departure from all prior common law
and federal decisions on the issue.
The dissent forcefully argues that Congress, by the use
of the term ‘‘under color of official right’’, intended to
adopt the common law definition of extortion. The majority
opinion elides the relevant legislative history which, of
course, argues to the contrary of the majority’s implied
position that the federal courts are free to fashion their
own definition of extortion under the Hobbs Act, despite
the common law.
The Court of Appeals ignores as well this Court’s de-
cision in United States v. Nardello, 393 U. S. 286 (1969)
holding the common law definition of extortion applicable
under the Travel Act (18 U.S. C. 1952).
The decision of the Third Circuit is likewise at odds
with the interpretation placed on this section by the Court
of Appeals for the Seventh Circuit in United States v.
Staszcuk, 502 F. 2d 875 (7th Cir. 1974) (reaffirmed on re-
hearing May 16, 1975) and United States v. Braasch, 505
F.. 2d 139 (7th Cir. 1974), where that Court looked to the
actual rather than apparent official power of the defendants
involved.
Petition for Writ of Certiorari 11
II. The Court of Appeals Has Ignored This Court’s Deci-
sions Urging Narrow Construction of Federal Criminal
Jurisdiction.
In United States v. Enmons, 410 U. S. 396 (1973) this
Court affirmed the dismissal of a Hobbs Act Indictment
charging union members with conspiracy to extort an agree-
ment by violence. Rejecting the broad construction argued
by the Government this Court held:
‘Tt is unlikely that if Congress has indeed wrought
such a major expansion of Federal criminal jurisdic-
tion in enacting The Hobbs Act, its action would have
so long passed unobserved... . Even if the language
and history of the Act were less clear, than we have
found them to be, the Act could not be properly ex-
panded as the Government suggests—for two related
reasons. First, this being a criminal statute, it must
be strictly construed, . . . Secondly, . . . Neither
the language of The Hobbs Act nor its legislative his-
tory can justify the conclusion that Congress intended
to work such an extraordinary change in the Federal
labor law or such an unprecedented incursion into the
criminal jurisdiction of the States.’’ 410 U.S. at 410.
In Enmons this Court reiterated the cautionary guide-
lines of its opinions in United States v. Bass, 404 U. S. 336
(1973), and Rewis v. United States, 401 U. S. 808 (1971):
‘‘Congress has traditionally been reluctant to find
as a Federal crime conduct readily denounced as crimi-
nal by the States. This Congressional policy is rooted
in the same concepts of American Federalism that pro-
vided the basis for judge-made doctrines. See: Younger
v. Harris, 401 U.S. 37 (1971).’’ 404 U.S. at 339.
This Court has seen fit to repeat similar cautionary
language in Erlenbaugh v. United States, 409 U. S. 239
(1972).
12 Petition for Writ of Certiorari
III. The Depletion of Assets Theory of Interstate Com-
merce Violates the Commerce Clause and Appears at
Variance With Prior Decisions of This Court.
Section 1951(b)(3) defines the relevant commerce as
‘‘all commerce over which the United States has jurisdic-
tion’’. We do not quarrel with the Congressional intent to
exercise the full extent of the commerce power but the
Court of Appeals has exceeded that limit.
As petitioner views the law, there is a two-fold test for
Hobbs Act application to commerce and it is, first, that the
transaction must pass the Constitutional test of interstate
commerce, and secondly, the statutory test. In other words,
before a Court may enter upon consideration of whether a
given extortion ‘‘in any manner or degree obstructs, de-
lays or affects commerce,’’ §1951(a) it must first deter-
mine that the transaction meets the Constitutional test of
interstate commerce. Congress, in using the phrase ‘‘all
commerce over which the United States has jurisdiction,’’
was plainly not attempting to describe a penumbral area
which it found to be affected interstate commerce (as in
Heart of Atlanta Motel v. United States, 379 U. S. 241
(1964) mistakenly relied on by the Court of Appeals be-
low) ; rather, Congress obviously intended to confide to the
courts alone the determination of the reach of the com-
merce power for the purpose of the Hobbs Act unaided and
unhampered by any Congressional finding or declaration of
scope or purpose.
This Court has unequivocally held in 10 East 40th
Street Building v. Callus, 325 U. 8. 578 (1945):
‘*Renting office space in a building exclusively set
aside for an unrestricted variety of office work spon-
taneously satisfies the common understanding of what
is local business and makes the employees of such a
building engaged in local business.’’
Petition for Writ of Certiorari 13
This Court has also unequivocally held that to trans-
late essentially local activity into Federally regulable com-
merce there must be shown ‘‘such a close and a substantial
relation to interstate commerce that their control is essen-
tial or appropriate to protect that commerce from burdens
and obstructions. . .’’ N. L. R. B. v. Jones and Laughlin
Steel Corporation, 301 U. S. 1 (1937). This test has been
consistently applied from Gibbons v. Ogden, 9 Wheat. 1,
195, 6 L. Ed. 23, 70 (1824) through Heart of Atlanta Motel,
supra; Katzenbach v. McClung, 379 U. S. 294 (1964) and
Allenberg Cotton Co., Inc. v. Pittman, — U.S. —, 42 L. Ed.
2d 195 (1974).
The Third Cireuit holds in this case that the payment
of $20,060. to petitioner depleted the assets of the local
Pennsylvania parent company and thus impaired the inter-
state business of its 16 subsidiaries. The Court ignores the
net economic benefit of $180,000, to the corporation and its
subsidiaries and appears to apply a moral rather than
economic test to the transaction, thus unconstitutionally
importing a police power standard into the interpretation
of the Commerce Clause. The Court of Appeals does not
reckon with the obviously local characteristics of the trans-
action which would exclude Federal jurisdiction if the ten
percent involved were a lawful finder’s fee, a State tax, a
municipal Use and Occupancy tax or a real estate commis-
sion such as the payor described it to be in this record.
The Court of Appeals also ignores the unparalleled
potential expansion of Federal jurisdiction which the de-
pletion theory allows simply by virtue of the fact that in
1975 hardly a person or corporation in the United States
does not buy and sell in interstate commerce and the most
local crime of robbery, blackmail or official extortion is thus
made a Federal offense.
The Court below thus ignores the sensible caution of
Chief Judge Swygert’s dissenting Opinion in United Staies
v. Amabile, 395 F. 2d 47, 54 (7th Cir. 1968) reiterated in
the following language from the same judge’s concurring
14 Petition for Writ of Certiorari
Opinion in United States v. De Met, 486 F. 2d 816, 823 (7th
Cir. 1973) :
‘‘If a depletion of reserves is all that is necessary
to show the requisite effect on commerce, then a threat
of any kind to extract money made to a person who
happens to operate a business engaged to any extent
in interstate commerce comes within the Statute’s
proscription. Under this rationale, a retail store owner,
for example, would be afforded Federal protection from
extortion, regardless of the nature or the likely effect
of the threat simply because his stock of merchandise
has in some measure moved in interstate commerce.’’
CONCLUSION.
For the foregoing reasons, petitioner respectfully sub-
mits that this Court should issue its Writ of Certiorari to
the Court of Appeals for the Third Circuit to review its
instant decision.
Respectfully submitted,
Joun Rocers Carro..,
Counsel for Petitioner.
APPENDIX A.
UNITED STATES COURT OF APPEALS
For tHe Tuirp Crecvuit
No. 75-1357
UNITED STATES OF AMERICA,
Appellee,
v.
FRANK MAZZEI,
Appellant.
(Crim. No. 74-319—W.D. of Pa.)
AppEAL From THE Unitep States Disrricr Court ror THE
Western District or PENNSYLVANIA
Argued Before the Court In Banc
May 8, 1975
Before Seitz, Chief Judge, Vax Dusen, Aupisert, ADAMs,
Grppons, Rosenn, Hunter, Weis and Garru,
Circuit Judges.
Richard L. Thornburgh
United States Attorney
James J. West, Assistant
United States Attorney
Attorneys for Appellee
John Rogers Carroll, Esquire
Suite 326, Three Penn Center Plaza
Philadelphia, Pennsylvania
Attorney for Appellant
(Al)
A2 Court of Appeals Opinion
OPINION OF THE COURT
(Filed July 29, 1975)
Seitz, Chief Judge.
Defendant Frank Mazzei appeals from his conviction
after a jury trial of two counts alleging extortion in viola-
tion of the Hobbs Act, 18 U.S.C. § 1951 (1970). His chal-
lenge raises questions regarding the jurisdictional reach
of the Hobbs Act and the substantive content of the crime
of extortion which it defines.
The parties are in basic agreement on the facts. B.M.L.,
Inc., a Pennsylvania corporation and the victim of the al-
leged extortion, is the holding company of sixteen sub-
sidiaries which engage in interstate businesses largely re-
lating to the manufacture and installation of bulk refractory
materials used in blast furnaces. B.M.I. is headquartered
in a building at 700 Bingham Street, Pittsburgh, Pennsyl-
vania, title to which is in the name of a wholly-owned
subsidiary, Pneumatic Concrete Corporation. Accounting
services for B.M.I. and all its subsidiaries are centered in
the building and services such as billing and payments of
accounts receivable are carried out by B.M.I. for all its
subsidiaries from the office.
Prior to 1971, only one-half of the second floor of the
Bingham Street building was occupied. Apart from
B.M.I.’s ofiizes on this floor, the remainder of the second
floor and the whole first and third floors were vacant. Leo
Kelly (‘‘Kelly’’), secretary-treasurer of B.M.I. and all
its subsidiaries, was anxious to lease the unused space to
reduce overhead costs. Kelly spoke with Gerald R.
Creehan, a director of a local bank, about the possibility of
securing tenants. Mr. Creehan had learned that the de-
fendant, a Pennsylvania state senator, was seeking office
space on the Southside of Pittsburgh. Defendant was re-
portedly seeking a location in his district for the Pittsburgh
regional office of the new Bureau of State Lotteries, even
Court of Appeals Opinion A3
though as a legislator he had no statutory power with re-
spect to the Bureau’s leasing practices. Kelly asked Mr.
Creehan to set up a meeting with the defendant.
A meeting was held in November 1971 between de-
fendant and Kelly at which leases were mentioned but not
discussed in detail. The defendant later visited the
premises, and at Kelly’s invitation, a dinner meeting was
held on January 8, 1972, where leases were again discussed
generally. At approximately the same time, the premises
were inspected by a representative of the Department of
Property and Supplies, the state authority responsible for
securing office space for state agencies, to determine their
suitability for occupancy as a lottery office.
Without prior notice, defendant visited Kelly at the
B.M.I. office on January 11, 1972, to suggest the rental which
B.M.I. should submit in its proposal to the state. Kelly
testified that at this meeting defendant informed him that
‘it was the practice on all state leases that a ten per cent
of the gross amount of the rentals would be paid to a senate
finance re-election committee... .’’ The payment was to
be in cash at the beginning of the lease. Defendant then
proceeded to compute the gross rental and the ten per cent
_ payment on a pad in Kelly’s office. The page on which de-
fendant had made his calculations was received into evi-
dence at trial.
On January 13, 1972, Kelly submitted a proposal to the
Department of Property and Supplies for lease of a portion
of the first floor of the Bingham Street building to the
Bureau of Lotteries. The executed lease was received from
the state on March 23 or 24, 1972, and shortly thereafter
defendant inquired of Mr. Creehan whether Kelly had left
an envelope for defendant at Creehan’s bank. At defend-
ant’s request, Mr. Creehan relayed the message to Kelly,
who authorized the withdrawal and delivery to defendant
of $8,755, which Kelly computed to be ten per cent of the
gross rental B.M.I. would receive under the lease. The
money was delivered personally to defendant in late March
1972.
A4 Court of Appeals Opinion
In November or December 1972, defendant stopped in
at the B.M.I. offices to ask Kelly if he was interested in
leasing space to the Department of Labor and Industry,
again an executive agency with which defendant had no
statutory connection. On December 27, 1972, defendant
brought officials from the Departments of Property and
Supplies and Labor and Indusiry to view the premises.
Other state officials visited during the spring of 1973.
Sometime shortly before April 14, 1973, Kelly and defend-
ant discussed B.M.I.’s proposal for the Labor and Industry
lease. Defendant again suggested the rental B.M.I. should
propose and informed Kelly that the same ten per cent
arrangement would be in effect. B.M.I. submitted a pro-
posal, later revised at defendant’s behest, that led to re-
ceipt of an executed lease from the state on July 20, 1973.
After defendant indicated that he had to have his cash
payment that same day, Kelly delivered $11,300 (10% of
the gross rental) to defendant’s secretary at his nearby
office. Defendant acknowledged receipt of the money by
telephone.
On appeal, defendant challenges his conviction on two
grounds: (1) the transactions from which the charges arose
lacked sufficient impact on interstate commerce to give rise
to federal jurisdiction over them and (2) his receipt of
money did not amount to extortion within the meaning of
the Hobbs Act. Defendant also challenges a portion of his
sentence which ordered his removal from state office as be-
yond the power of the district court.
Effect on Interstate Commerce
Defendant acknowledges that in enacting the Hobbs
Act, Congress intended to ‘‘use all the constitutional power
{it} has to punish interference with interstate commerce.
.’’ Stirone v. United States, 361 U.S. 212, 215 (1960).
He contends, however, that the transactions involved here
did not touch upon interstate commerce and that, therefore,
the Hobbs Act cannot constitutionally be construed to em-
brace his conduct.
tee
Court of Appeals Opinion A5
Defendant has admitted that although B.M.I. does no
interstate business itself, it is ‘‘legitimate’’ to identify
B.M.I. with its wholly controlled subsidiaries that are en-
gaged in substantial interstate operations. Conceding the
interstate character of the B.M.I. enterprise, defendant still
contends that federal jurisdiction is lacking because the
lease transactions in which B.M.I. were engaged here are
‘‘local’’ in nature. He urges that only if we can find that
the lease transactions themselves affected interstate com-
merce may we assess the impact of the alleged extortion on
interstate commerce.
The government, on the other hand, urges us to find
both federal jurisdiction and Hobbs Act coverage on the
theory that the some $20,000 in payments to defendant de-
pleted the assets of B.M.I. and thereby affected its power to
operate in interstate commerce. This position accords with
our previous holdings that where the resources of an inter-
state business are depleted or diminished ‘‘in any manner’’
by extortionate payments, the consequent impairment of
ability to conduct an interstate business is sufficient to bring
the extortion within the play of the Hobbs Act. United
States v. Addonizio, 451 F.2d 49 (3rd Cir. 1971), cert.
denied, 405 U.S. 936 (1972); United States v. Provenzano,
334 F.2d 678 (3rd Cir.), cert. denied, 379 U.S. 947 (1964).
Defendant would distinguish these cases on the ground that
in each there was a direct and immediate effect on inter-
state commerce that is wholly lacking here.
Despite the local character of the lease transactions
giving rise to the alleged extortion in this case, we are of
the opinion that the depletion of B.M.1.’s assets provides
a jurisdictional basis under the Hobbs Act for the mainte-
nance of this action. B.M.I. owns subsidiaries which pur-
chase materials in a number of states for use in manu-
facturing products sold in almost every state. As a result
of defendant’s actions, funds available to B.M.I. for use in
such interstate activities have been diminished and its inter-
state business must to this extent be curtailed. Because of
this effect on interstate commerce, the fact that the alleged
A6 Court of Appeals Opinion
extortion arose from a local lease to a state agency is not
dispositive, for ‘‘[i]f it is interstate commerce that feels
the pinch, it does not matter how local the operation which
applies the squeeze.’’ United States v. Women’s Sports-
wear Mfrs. Ass’n, 336 U.S. 460, 464 (1949). Although
enunciated in an antitrust context, the principle stated in
the quoted language has broad application to questions re-
garding congressional power under the commerce clause.
See, e.g., Heart of Atlanta Motel v. United States, 379 U.S.
241 (1964).
We therefore conclude that the Hobbs Act may consti-
tutionally be construed to reach the indirect burdens placed
on interstate commerce by the extortionate activities alleged
in this case and that such a construction of the statute ac-
cords with Congressional intent to proscribe extortion
which ‘‘in any way or degree obstructs, delays, or affects
commerce.’’ 18 U.S.C. § 1951(a).' United States v. De Met,
486 F.2d 816 (7th Cir. 1973), cert. demed, 416 U.S. 969
(1974); United States v. Augello, 451 F.2d 1167 (2d Cir.
1971), cert. denied, 405 U.S. 1070 (1972); cf. United States
v. Staszcuk, No. 73-1869 (7th Cir., filed May 16, 1975); (in
banc) cert. pet. filed 48 U.S.L.W. 3675 (June 13, 1975)
(jurisdiction under the Hobbs Act may be satisfied by show-
ing a ‘‘realistic possibility that an extortionate transaction
will have some effect on interstate commerce.’’)
Extortionate Nature of Defendant’s Conduct
Defendant also contends that his conduct, whatever
other laws it might violate, does not constitute extortion
within the meaning of the Hobbs Act. The statute defines
extortion as
1. We do not consider thai an absence of effect on interstate
commerce is shown by the fact that B.M.I. had a net cash inflow by
reason of entering into the leases. Although B.M.I. undoubtedly
used defendant’s influence to put itself in a position where the award
of state leases was likely, at that point it had the right to receive the
full rental, described by state officials as completely reasonable, with-
out paying defendant some $20,000 to insure that the lease opportu-
nities were not lost.
Court of Appeals Opinion A7
The obtaining of property from another, with his con-
sent, induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official right.
Defendant characterizes the payments made to him as
B.M.I.’s voluntary purchase of his influence in an area in
which he had no official power and in which he never pre-
tended to have any official power. He further contends that
there was no element of coercion present, and that therefore
he could not be guilty of extortion even if he had been acting
‘‘under color of official right.’’
It is clear, of course, that defendant had no statutory
power as a state senator to control the granting of leases
by state executive agencies. But in order to find that de-
fendant acted ‘‘under color of official right,’’ the jury need
not have concluded that he had actual de jure power to
secure grant of the lease so long as it found that Kelly held,
and defendant exploited, a reasonable belief that the state
system so operated that the power in fact of defendant’s
office included the effective authority to determine recipients
of the state leases here involved. See United States v.
Price, 507 F.2d 1349 (4th Cir. 1974) (per curiam) ; United
States v. Staszcuk, supra (adopting by reference the panel
opinion at 502 F.2d 875 (7th Cir. 1974) on this point). Such
an exploitation involves the wrongful use of official power
that has long been punished at common law as extortion
‘*under color of public office.’’ See, e.g., Commonwealth v.
Wilson, 30 Pa. Super. 26 (1906). The issue of Kelly’s
belief and its reasonableness was a jury question which
was submitted under appropriate instructions.’
Kelly’s belief in defendant’s power over state leases
in his district is amply established by the record. In his
most succinct statement in this respect, Kelly testified:
2. A portion of the court’s instruction was that the defendant
could be convicted if the jury found “that Leo Kelly reasonably be-
lieved that the senator’s official functions included the securing of
jeases with the Commonwealth of Pennsylvania” and “that Senator
Mazzei used his office or wrongfully used his official power.”
A8 Court of Appeals Opinion
I thought that was the method that state leases were
handled. I just accepted it as gospel.
I don’t know how it works in Harrisburg. . . .
{[T]}here has to be that influence and power, and they
were letting the senator do it.
Furthermore, we find after a careful review of the
record in the light most favorable to the government,
Glasser v. United States, 315 U.S. 60, 80 (1942), that the
evidence permitted the jury to find that Kelly’s belief in
defendant’s power was reasonable. With respect to the
first lease, we note that there were rumors that defendant
was looking for space for the lottery office. Kelly’s meet-
ings with defendant in December 1971 and January 1972
produced an inspection by an official of the Department of
Property and Supplies even though no one from B.M.I. had
contacted anyone other than defendant. Also, defendant
suggested that B.M.I. propose to the state a rental of $4.25
per square foot, which he said was the rate at which a
recent state lease in Philadelphia had been awarded and the
highest that the state would approve. These representa-
tions by the defendant himself suggest an intimate aware-
ness of state leasing practices.
When defendant opened negotiations with respect to
the second lease and brought officials to inspect the
premises, other officials from the Department of Labor and
Industry appeared without any request from B.M.I. per-
sonnel. As with the lottery lease, defendant suggested a
proposed rental for submission to the state, this time at
$4.90 per foot because parking spaces would be provided.
When B.M.I. did not follow his recommendation and sub-
mitted to the state a proposal of $4.35 per foot that excluded
janitorial services, defendant quickly called Kelly to advise
him that the proposal should be at the higher rate he sug-
gested and must cover janitorial services. Kelly told de-
fendant to ‘‘put it in at $4.90,’’ and without the submission
Court of Appeals Opinion A9
of a revised proposal by B.M.I., the state returned a lease
with a rate of $4.90 which required B.M.I. to provide the
additional services. Furthermore, on two occasions in
July 1973, defendant assured Kelly that B.M.I. would secure
the Labor and Industry lease. One such assurance was
given in a meeting on July 18, 1973, where defendant cal-
culated the five year gross rental figure, on which the ten
per cent payment would be based, on a paper introduced
into evidence at trial. In these computations, defendant
used a yearly rental of $22,569.40, the rentai computed at
the $4.90 rate and the exact rental stated in the lease re-
ceived by B.M.I. from the state two days later.
Thus, defendant had the ability to initiate state in-
spection of the premises, to specify rental rates that would
be and were acceptable to the state, and to alter B.M.I.’s
proposal on the second lease. Also, throughout the lease
negotiations, defendant displayed to Kelly intimate know)-
edge of the decision making process involved in the granting
of state leases. This, in our view, constituted sufficient evi-
dence to justify a finding by the jury that Kelly could rea-
sonably have believed that as a concomitant of his official
position defendant possessed not mere influence over state
leases but in fact had effective power to determine to whom
these leases were awarded even though his office gave him
no such de jure power.
Defendant urges, however, that even if he did have
some power to influence the awarding of state leases, he
still did not commit extortion in his receipt of payments of
some $20,000 from B.M.I. He acknowledges that in United
States v. Kenny, 462 F.2d 1205 (3rd Cir.), cert. denied, 409
U.S. 914 (1972), we held that the Hobbs Act is to be read
disjunctively and approved an instruction that extortion
could be established either when property is obtained
through the use of fear or by one acting under color of
official right. 462 F.2d at 1229. He contends, however, that
a coercive use of office must be established even when the
prosecution is based on the alternate ground of ‘‘color of
A10 Court of Appeals Opinion
official right,’’ and relies on the statement of this court in
Addonizio that ‘‘while the essence of bribery is voluntari-
ness, the essence of extortion is duress.’’ 451 F.2d at 72.
We do not agree with this contention because we are satisfied
that in such a prosecution, any element of coercion that
may be required to establish extortion under the Hobbs Act
is supplied by the misuse of the defendant’s official power.
The definition of extortion in the Hobbs Act is substan-
tially that of its predecessor statute, the Anti-Racketeering
Act of 1934, ch. 569, §§ 1-6, 48 Stat. 979. Unfortunately,
however, the legislative history of neither statute provides
any hint of congressional intent in adopting this definition
of extortion, other than statements by proponents of the
Hobbs Act that the statute did no more than incorporate
the conventional definition of extortion contained in New
York law. See, e.g., 91 Cong. Rec. 11842 (1945) (remarks
of Rep. Walter) ; td. at 11843 (remarks of Rep. Michener).
We must, therefore, look to the face of the statute to
determine its meaning. As we noted in Kenny, the ‘‘under
color of official right’’ language
repeats the common law definition of extortion, a crime
which could only be committed by a public official, and
which did not require proof of threat, fear, or duress.
462 F.2d at 1229, citing United States v. Nardello, 393
U.S. 286, 289 (1969).
Under the common law definition, color of public office took
the place of the coercion implied in the ordinary meaning
of the word extortion. United States v. Sutter, 160 F.2d
754 (7th Cir. 1947). Further support for the proposition
that overt coercion need not be proved in a Hobbs Act
prosecution for receipt of property ‘‘under color of official
right’’ is supplied by the disjunctive wording of the statute
which strongly implies that a showing of ‘‘force, violence
or fear’’ is not required when the prosecution is based on
the theory that money was obtained through wrongful
exercise of the power of office.
Court of Appeals Opinion All
We conclude that Kenny properly read the statute and
that a showing of the inducement of payments ‘‘under color
of official right’? may replace proof of the coercion of
‘*foree, violence or fear’’ in a Hobbs Act prosecution. A
violation of the statute may be made out by showing that
a public official through the wrongful use of office obtains
property not due him or his office, even though his acts are
not accompanied by the use of ‘‘force, violence or fear.’’
United States v. Staszcuk, supra (adopting by reference
the panel opinion at 502 F.2d 875 (7th Cir. 1974) on this
point) ; United States v. Price, supra. We do not construe
Addonizio to hold to the contrary, since that case was sub-
mitted to the jury only on the theory that money had been
obtained through the use of fear, and the question presented
here and in Kenny was not before the court there.
We are convinced, therefore, that the evidence in this
case justified a finding by the jury that the payments to de-
fendant were induced by an exploitation of Kelly’s reason-
able belief that defendant’s position as a state senator pro-
vided him with effective control over the state leases here
involved even though he lacked de jure authority to act in
this sphere. In consequence, we conclude that consent to
the payments was ‘‘induced . . . under color of official
right’’ and in violation of the Hobbs Act even without proof
of the exercise of overt coercion.
Removal From Office
In its sentence of April 11, 1975, the district court
ordered defendant removed from office as a Pennsylvania
state senator. On June 2, 1975, the Pennsylvania Senate
purported to expel defendant from office. Although we
take notice of the Senate’s action, we reject the govern-
ment’s urgings that because of the intervening expulsion
we should decline to treat the question of the propriety of
the order of removal on the ground of mootness. In the
first place, we cannot assume that defendant concurs in
Al2 Court of Appeals Opinion
the propriety of his expulsion by the Senate, and this mat-
ter has not yet been adjudicated. Thus, the controversy
regarding his right to remain in the state Senate is still a
live issue. In addition, failure to address the issue of re-
moval would leave unresolved a challenged assertion of the
power of a federal court to remove a state official from
office. The significance of the assertion of federal power
by the district court in this particular context demands that
we determine defendant’s challenge.
The district court purported to act pursuant to a Penn-
sylvania statute, 65 P.S. §121 (Supp. 1974), which provides
that upon conviction in a court of record of extortion or
other specified crimes, any person holding public office
‘*shall forfeit his office, and the sentence imposed by the
court shall include the direction for the removal from office
of such person.’’ The government contends that although
the district court had no power to impose any penalty be-
yond that specified by Congress for violation of the Hobbs
Act, it did have the power to enforce what the government
construes as an automatic forfeiture of office by operation
of the Pennsylvania statute. It offers alternate theories
to sustain the district court’s order: (1) removal could be
imposed as a condition of release pending appeal; (2) the
court has the inherent power to enforce the policy expressed
in the statute; or (3) the court could take notice of and en-
force a collateral consequence of defendant’s conviction.
We perceive no basis upon which the district court’s
order of removal was justified. Removal from office was
in no sense imposed as a condition of release pending ap-
peal, and indeed, could not have been, since release after
conviction is determined on the basis of considerations of
likelihood of flight and danger to the community, 18 U.S.C.
§ 3148 (1970), and not on whether defendant might infringe
the public policy of Pennsylvania by remaining in office.
Nor can we find any authority for inherent power in the
district court to enforce the policy of the Pennsylvania
statute. As a court of limited jurisdiction, the district
Court of Appeals Opinion A13
court possessed only the power to act in this criminal case
which Congress has given it by statute. As the Supreme
Court has stated:
The law of our country takes care . . . that not the
weight of a judge’s finger should fall upon anyone ex-
cept as specifically authorized. In re Bonner, 151 U.S.
242, 259 (1884).
We can see no escape from this principle by arguments
that the district court’s order was not penal in nature, but
merely the enforcement of a ‘‘judicially noticeable col-
lateral consequence of defendant’s conviction.’’ The simple
and unassailable fact is that Congress has given the district
court no power to take any action in sentencing a defendant
except to impose a punishment within the limits prescribed
by statute. The order of removal was beyond the power
of the court.
The order directing defendant’s removal from office is
separate and distinct from the remainder of the district
court’s sentence. We are in a position, therefore, to ad-
judicate its invalidity without disturbing the clearly au-
thorized sentence of fines and imprisonment. For this
reason, we will exercise our power to correct the sentence
rather than remanding the case for the execution of this
ministerial act.
The judgment of the district court will be modified by
deleting that portion directing that defendant be removed
from the office of Pennsylvania State Senator. As thus
modified, the judgment will be affirmed.
Gissons, Circuit Judge, dissenting, with Judge Aldisert
joining
This case, which is one of first impression nationally
at the appellate level, requires us to explore the reach of
the Hobbs Act’s proscription of extortion. 18 U.S.C.
Al4 Court of Appeals Opinion
§1951(a). More particularly, it deals with that branch of
§1951(b)(2) which defines ‘‘extortion’’ as ‘‘the obtaining
of property from another, with his consent ... under color
of official right.’’ Does the Act prohibit a person having no
official position in, or control over, a state executive branch
department from taking money in exchange for the exercise
of political influence over two decisions by that department?
Of course, the majority does not make so bald a statement
of the issue. Rather they choose nominally to rely upon
the fact that the appellant, Mazzei, held the office of senator
in the state government’s legislative branch. They choose
to ignore the fact that it was Mazzei’s influence, not his
office, which accomplished the results for which the pay-
ments were made. On this record, I can conclude only that
Mazzei’s willing victim perceived him to be exactly what
he was—a power-broker. In Kelly’s eyes, at least, Mazzei’s
position was no different from that of an influential state or
county political leader holding no office whatsoever. If
Mazzei violated the Hobbs Act by representing that he had
the de facto power to influence the state executive depart-
ment’s decisional processes, then anyone, whether in or out
of office, can also be convicted. This may be a desirable
result—in the abstract. It is not, I submit, what Congress
intended when it enacted the Hobbs Act.
I Areas of Agreement and Disagreement
Assuming Congress had made the conduct a crime, I
agree that the transaction alleged in the indictment had a
sufficient impact upon interstate commerce to sustain con-
stitutionally the exercise of federal criminal jurisdiction.’
I agree, as well, that § 1951(b)(2)’s definition of extortion
should be read disjunctively to cover either coercive ex-
tortion or receipt of money under color of official right.?
1. United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971),
cert. denied, 405 U.S. 936 (1972); United States v. Provenzano,
334 F.2d 678 (3d Cir.), cert. denied, 379 U.S. 947 (1964).
2. United States v. Kenny, 462 F.2d 1205, 1228-29 (3d Cir.),
cert. denied, 409 U.S. 914 (1972).
Court of Appeals Opinion Ald
Moreover, I agree that examined in the light most favorable
to the government,® the evidence permitted the jury to
conclude that Kelly, the all-too-willing victim, had a reason-
able belief that Mazzei had the de facto power to influence
the state’s leasing decisions. But I do not find any evidence
in the record suggesting that Kelly had any ground for be-
lieving that the 10% commission on gross rentals was an
official emolument of the office of state senator, nor does
the majority suggest that any such evidence exists. The
majority’s holding is found in this one sentence:
‘‘But in order to find that defendant acted ‘under
color of official right,’ the jury need not have concluded
that he had actual de jure power to secure grant of the
lease so long as it found that F lly held, and defendant
exploited, a reasonable belie: iat the state system so
operated that the power in fact of defendant’s office
included the effective authority to determine recipients
of the state leases here involved.’’ (Majority op.
at 7).
A review of the transcript reveals that the district court
did not charge that the jury had to find that Kelly had a
reasonable belief ‘‘that the state system so operated that
the power in fact of defendant’s office included the effective
authority to deterisine recipients of the state leases.’’*
3. Glasser v. United States, 315 U.S. 60, 80 (1942).
4. The court charged:
“Extortion under color of official right is the wrongful
taking by a public official, such as a state senator, of money not
due to the official or due to his office.
Extortion, as defined by federal law, is committed when
money is wrongfully obtained by consent of the victim under
color of official right. When so obtained, the crime has been
committed.
The use of public office to obtain payments of money is the
crux of the statutory requirement under color of official right.
Wrongful use of official power can be a basis for extortion. It
matters not whether the public official induces payments of
money to perform his duties or not to perform his duties. It
matters not whether the public official performs acts or does not
A16 Court of Appeals Opinion
Thus the majority is affirming on a different theory from
the one actually presented to the jury.
Explicating that portion of the charge reprinted in
the margin,° we see that the district court defined the term
‘‘under color of official right’’ first negatively and then
affirmatively. In the negative portion the court made clear
that the jury did not have to find that the payments had
anything to do with the performance or non-performance
of senatorial duties, or with the performance or non-
performance of ‘‘acts unrelated to [such] duties which can
only be undertaken because of his official position.’’ Thus,
by negative definition the charge excluded the necessity for
a finding that a state system placed even the de facto de-
cisional responsibilities in the state senator as such. Nor
did the district court charge that Kelly had to have had a
reasonable belief in the existence of such a system. The
key sentences in its affirmative definition of ‘‘under color
of official right’’ are these:
‘*So long as the motivation of payment of money
by the victim focuses on the public official’s office, the
conduct violates the Hobbs Act. Thus, if you find that
Senator Mazzei held himself out to BMI, Incorporated
as being in a position to influence the granting of the
leases in question, you need not find that he was actually
legally empowered to do so, to find he was acting under
color of official right.’’ (Tr. at 943) (emphasis added).
If we look at the charge on official right in its entirety the
most that can be said to have been submitted to the jury
4. (Cont’d.)
perform acts unrelated to his duties which can only be under-
taken because of his official position.
So long as the motivation of payment of money by the
victim focuses on the public official's office, the conduct violates
the Hobbs Act. Thus, if you find that Senator Mazzei held
himself out to BMI, Incorporated as being in a position to in-
fluence the granting of the leases in question, you need not find
that he was actually legally empowered to do so, to find he was
asking under color of official right.” (Tr. at 942-43).
5. See note 4 supra.
Court of Appeals Opinion Al7
was that it must find (a) that Mazzei was a Senator, and
(b) that he represented that he, not his office, had the power
to influence the granting of the leases. Moreover, the
charge is sufficiently ambiguous so that the jury may well
have understood the reference to the public official’s office
as a reference not to the office of state senator but to an
‘‘office’’ exerting de facto power in the Bureau of Lotteries
or the Department of Labor and Industry. But, let me re-
solve this ambiguity in favor of the government. Then, I
must conclude that the case was submitted to the jury on
the theory that the Hobbs Act is violated when an influence
peddler, who is also a state senator, says that for a fee he
can influence the decisions of a different governmental
branch and does so.
The district court understood perfectly well that it
was giving the case to the jury on an influence peddling
charge having nothing to do with the de jure or de facto
powers of the office of state senator. It expressly declined
to charge these defendant’s requests:
‘5. Extortion under color of official right occurs
when a public officer, including elected officers, obtains
anything of value under the pretense that the officer
was entitled to it by virtue of his office. If a person
who happens to be a public officer renders a service in
his private capacity and demands a payment therefor
or makes any demand in his private capacity, it is not
extortion because it was not done under color of official
right... .
6. (Alternate resuest: Extortion) Before you can
convict defendant of inducing payments under color
of official right, you must be satisfied beyond a reason-
able doubt that the following occurred:
(c) that Senator Mazzei performed acts which
could only be undertaken because of his official posi-
tion;
A18 Court of Appeals Opinion
(d) that the motivation for payment focused
on defendant’s position as a senator as distinguished
from his ability to exert political influence.’’ (II App.
at 356a-57a).
Contrasting the charge as given with the requests to charge
that were explicitly rejected, it simply cannot be said that
the case went to the jury on the theory that it could convict
if it found that there was or was represented to be a state
system vesting power over leases in the state senator. Nor
did the district court understand that the jury had to find
that the victim entertained any belief, reasonable or other-
wise, on the subject of official right, for the court totally
rejected defendant’s request to charge number 7 reprinted
in the margin.®
My areas of disagreement with the majority, then, are
threefold. First, I do not agree that the case was sub-
mitted to the jury on the theory that Mazzei represented
that state senators had by virtue of a state system the de
6. “7. Cotor oF OrFiciaL RiGcHt: In determining whether the
money was obtained under color of official right you must con-
sider all of the facts upon which Mr. Kelly acted. Did he seek
out Senator Mazzei or did the senator seek him out? Did he
believe from the outset that the agreement between him and the
senator involved an official task of the senator or an unofficial,
political favor? Did he believe that he was paying the money
for something the senator was supposed to do as a senator? Did
he know that the ultimate decision was in the hands of the Lot-
tery Bureau, the Department of Properties and Supplies? Did
the documents, including the original proposal and the leases
themselves, place him on notice that Senator Mazzei could not
exert any ial influence in securing the leases? Did he know
or should he have known that, once the leases were obtained,
payment to the senator was not payment for any official conduct
and therefore not under color of official right? Did the manner
by which the corporation treat the payments on their books and
records reveal that it was making a political contribution and
therefore not paying under color of official right? Ultimately,
you should ask yourselves whether Mr. Kelly agreed to pay
for the senator’s efforts in getting all of the parties together so
that BMI could get preferential consideration for leases which
Mr. Kelly knew had to be approved by others than Senator
Mazzei.” (II App. at 357a) (emphasis added).
=
Court of Appeals Opinion A19
facto emolument of office of control over leasing decisions.”
Second, I do not agree that the charge as given defines a
crime under the Hobbs Act. Third, I do not believe that
the Hobbs Act reaches the offense which the majority has
constructed, rather than that actually defined in the court’s
charge.
II The Authorities
No authority in this circuit has held that ‘‘under color
of official right’’ portion of §1951(b)(2) covers influence
peddling. In the three cases in which we h ve applied the
Hobbs Act to state public officials, the money extorted was
taken by or on behalf of the persons holding municipal
offices vesteu with decisional responsibility for the desired
end. United States v. Somers, 496 F.2d 723 (3d Cir.), cert.
denied, 419 U.S. 832 (1974); United States v. Kenney, 462
F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914 (1972);
United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971), cert.
denied, 405 U.S. 936 (1972). To the extent that defendants
not holding the offices responsible for the desired end were
involved in those cases, they were properly included by
virtue of 18 U.S.C. §2(a). But Mazzei is not charged with
having participated in obtaining money on behalf of or in
aid of someone holding an office in the executive branch of
Pennsylvania government. Rather, he is charged with ob-
taining money for himself by virtue of his influence there.
Since there are no Third Circuit cases applying the color
of official right provision to an influence peddler the major-
ity looks outside this circuit to United States v. Staszcuk,
No. 73-1869 (7th Cir. May 16, 1975), petition for cert. filed,
43 U.S.L.W. 3675 (U.S. June 24, 1975) where the en banc
court adopted, by reference, the panel opinion at 502 F.2d
875 (7th Cir. 1974), and to United States v. Price, 507 F.2d
1349 (4th Cir. 1974) (per curiam). These are slim reeds
upon which to base a major enlargement of federal criminal
law enforcement jurisdiction. The per curiam dictum in
7. I concede that viewed in the light most favorable to the gov-
ernment the evidence would have supported such a finding, had such
a charge been given.
A20 Court of Appeals Opinion
Price is particularly insignificant since the court actually
holds thai the conviction was sustainable under the other
branch of 41951(b)(2) dealing with coercion. But even
on the color of official right aspect, the case involved a city
councilman who led his victim to believe that as such he
had de facto power to prevent the issuance of an occupancy
permit. The jury was instructed that
‘‘[t}he issue . . . is not whether the defendant had
the power to withhold the permit, but whether it was
reasonable for [Scotsman to believe] that he. . . had
such power.’’ Jd. at 1350.
The appeal raised only the issue whether the jury must
have found de jure statutory power in the councilman.
The case simply did not involve influence peddling.
Staszcuk involved a payment to an alderman, who as such
had standing before the appropriate zoning authority to
oppose a zoning application in his ward, for refraining from
opposing the application. The payment was for the pur-
pose of influencing the defendant’s conduct as alderman,
not for purchasing his influence with others. An alderman
clearly is a public official, and Staszcuk took money under
color of that office to influence his conduct in that office.
Neither Price nor Staszcuk deal with payments for in-
fluence over third-party conduct. No case to which we
have been referred has ever applied the Hobbs Act in the
circumstances presented by this record.
III Mazzei’s Conduct Did Not Constitute
Common Law Extortion
At common law extortion was an offense that could only
be committed by a public officer. In Blackstone’s words,
‘‘extortion is an abuse of public justice, which consists in
any officer’s unlawfully taking, by colour of his office, from
any man, any money or thing of value, that is not due to
him, or more than is due, or before it is due.’’* Since the
8. 4 W. Blackstone, Commentaries *141.
Court of Appeals Opinion A21
essence of the offense was the abuse of the public trust that
inhered in the office there never was any doubt that the
powers of the office under color of which the defendant
acted, or pretended to act, must, if actually held, have made
possible the effectuation of the extortionate act. See, e.9.,
II J. Bishop, Commentaries on the Criminal Law § 329, at
246 (2d ed. 1859); R. Desty, A Compendium of American
Criminal Law § 84a, at 214-16 (1887); J. May, Law of
Crimes § 81, at 104-05 (4th ed. K. Sears & H. Weihofen
1938) ; 3 F. Wharton, Criminal Law € Procedure § 1393, at
790-91 (R. Anderson ed. 1957). A leading case describes
the crime thus:
‘The offense consists in the oppressive misuse of the
exceptional power with which the law invests the in-
cumbent of an office. It is thus apparent that the crime
of extortion is committable only by an officer. The
officer need not possess a legal title to the office whose
functions he executes. A person who serves as an
officer, and claims to be one is estopped to deny his
official appointment. 2 Bish. Cr. Law, $392. So it
appears that a de facto as well as a de jure officer is
punishable for extortion, as he is for any other mal-
feasance in office. But an official character, either de
facto or de jure, is essential. The indictment is drawn
in the usual form, and charges that the defendants were
officers, and, by color of their office, extorted. This is
a material averment, proof of which is absolutely re-
quired to support a conviction.’’ ®
Kitby v. State, 57 N.J.L. 320, 321-22, 31 A. 213, 213-14 (Sup.
Ct. 1894).
9. See, e.g., United States v. Nardello, 393 U.S. 286, 289
(1969) ; United States v. Sutter, 160 F.2d 754, 756 (7th Cir. 1947) :
United States v. Laudani, 134 F.2d 847, 851 n.1 (3d Cir. 1943),
rev'd on other grounds, 320 U.S. 543 (1944); Dunlap v. Curtis,
10 Mass. 210 (1813); Senate , 34 N.J. 35, 167 A.2d 161
(1961); State v. Weleck, 10 N.J. 355, 371, 91 A.2d 751, 759
(1952) ; Commonwealth v. Wilson, 30 Pa. Super. 26, 30 (1906) ;
The Queen v. Baine, 87 Eng. Rep. 946.
A22 Court of Appeals Opinion
Mazzei never pretended to hold any executive depart-
ment office nor did he pretend that he could personally
award the leases. He did no more than represent that he
could influence those executive department officers who con-
trolled the granting of leases. This was not common law
extortion. Mazzei was not misusing the office of senator.
He was misusing his personal political power to influence
the conduct of another officer.
IV The Statutory Offense
There is no federal common law of crimes. Neverthe-
less, when Congress uses words of technical import at
common law one must, in the absence of contrary indica-
tions, assume that Congress intended to incorporate at
least some of the common law meaning. As the majority
opinion points out, the word ‘‘extortion’’, as used in
§ 1951(b)(2), first appeared expressly in the Anti-Rack-
eteering Act of 1946 1° which amended the Anti-Racketeer-
10. Act of July 3, 1946, ch. 537, 60 Stat. 420. The 1946 version
of § 1951 was modified by Act of June 25, 1948, ch. 645, 62 Stat. 793
to read as it does today. The 1946 version read, in pertinent part,
as follows:
“Sec. 1. As used in this title—
(a) The term ‘commerce’ means (1) commence be-
tween any point in a State, Territory, or the Pistrict of
Columbia and any point outside thereof, or between points
within the same State, Territory, or the District of Colum-
bia but through any place outside thereof, and (2) com-
merce within the District of Columbia or any Territory,
and (3) all other commerce over which the United States
has jurisdiction; and the term ‘Territory’ means any Ter-
ritory or possession of the United States.
(b) The term ‘robbery’ means the unlawful taking or
obtaining of personal property, from the person or in the
presence of another, against his will, by means of actual
or threatened force, or violence, or fear of injury, immediate
or future, to his person or property, or property in his
custody or possession, or the person or property of a rela-
SS
Court of Appeals Opinion A23
ing Act of 1934." The 1934 statute was addressed primarily
to labor racketeering, and contained no express reference to
extortion. It did, however, proscribe both what might be
described as statutory extortion—that is, obtaining pay-
ments by use or threat of use of force—and what must have
been intended as common law extortion—that is, obtaining |
property ‘‘under color of official right.’’’* The wording
10. (Cont’d.)
tive or member of his family or anyone in his company at
the time of the taking or obtaining. ieee
(c) The term ‘extortion’ means the obtaining of prop-
erty from another, with his consent, induced by wrongful
use of actual or threatened force, violence, or fear, or under
color of official right.
Sec. 2. Whoever in any way or degree obstructs, delays, or
affects commerce, or the movement of any article or commodity
in commerce, by robbery or extortion, shall be guilty of a felony.
Sec. 3. Whoever conspires with another or with others, or acts
in concert with another or with others to do anything in viola-
tion of section 2 shall be guilty of a felony.
Sec. 4. Whoever attempts or participates in an attempt to do
anything in violation of section 2 shall be guilty of a felony.
Sec. 5. Whoever commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do
anything in violation of section 2 shall be guilty of a felony.
Sec. 6. Whoever violates any section of this title shall, upon
conviction thereof, be punished by imprisonment for not more
than twenty years or by a fine of not more than $10,000, or both.”
11. Act of June 18, 1934, ch. 569, 48 Stat. 979.
12. The 1934 Act read in pertinent part:
a ' ' ; ,
Sec. 2. Any person who, in connection with or in relation to
any act in any way or in any degree affecting trade or commerce
or any article or commodity moving or about to move in trade
or commerce—
(a) Obtains or attempts to obtain, by the use of or
attempt to use or threat to use force, violence, or coercion,
the payment of money or other valuable considerations, or
the purchase or rental of property or protective services, ’
not including, however, the payment of wages by a bona-
fide employer to a bona-fide employee ; or
- (D) ae va oon gery of another, with his consent,
induc y wrongtul use of force or fear,
of official right or ar, or under color
A24 Court of Appeals Opinion
of the 1934 statute presented some difficulties in its ap-
plication to labor racketeering, and receiving a fairly nar-
row reading in United States v. Teamsters Local 807, 315
U.S. 521 (1942). In specific reaction to that decision the
1946 statute was enacted.’* Structurally it differed from
the 1934 Act in several respects. Those differences im-
portant for our purposes are that the first section contains a
definition of the term ‘‘extortion’’ and for the first time
proscribed ‘‘extortion’’ in specific language. But the
definition in §1(¢c) of the 1946 Act, now § 1951(b) (2), al-
though it broadened the description of coercive extortion
somewhat," merely carried forward the ‘‘under color of
official right’? language of §2(b) of the 1934 Act. Thus
whatever congressional intention may be ascribed to that
term must be found in the records of the Seventy-third
Congress.
There is no legislative history extant tending to show
that the 1934 Act was intended to empower federal au-
thorities to police influence peddling in the political proc-
esses of the states."* Whatever legislative history there is
suggests a contrary conclusion. The 1934 Act originated
in the Senate as S. 2248, 73d Cong., 2d Sess. (1934), re-
printed in 78 Cong. Rec. 457-58 (1934). It was proposed
by Senators Copeland, Vandenberg and Murphy and con-
12. (Cont’d.)
(c) Commits or threatens to commit an act of physical
violence or physical injury to a person or property in fur-
therance of a plan or purpose to violate sections (a) or
(b) ; or
(d) Conspires or acts concertedly with any other per-
son or persons to commit any of the foregoing acts; shall,
upon conviction thereof, be guilty of a felony and shall be
punished by imprisonment from one to ten years or by a
fine of $10,000 or both.”
Act of June 18, 1934, ch. 569, §2, 48 Stat. 979-80.
13. H.R. Rep. No. 238, 79th Cong., 2d Sess., reprinted in 1946
U.S. Code, Cong. & Admin. News 1360, 1370.
14. Compare § 1(c) of the 1946 Act, supra note 10 with § 2(b)
of the 1934 Act, supra note 12.
15. See S. Rep. No. 532, 73d Cong., 2d Sess. (1934) ; H. Rep.
No. 1833, 73d Cong., 2d Sess. (1934).
Court of Appeals Opinion A25
tained no reference to extortion by ‘‘color of official right.’’
After passing the Senate, 78 Cong. Rec. 5734 (1934), it was
submitted in the House, where it was completely amended
and a new bill substituted. The reasons for this amend-
ment have been described by the Supreme Court in United
States v. Teamsters Local 807, supra, at 529, as follows:
‘‘After the bill had passed the Senate, however, rep-
resentatives of the American Federation of Labor ex-
pressed fear that the bill in its then form might result
in serious injury to labor, and the measure was re-
drafted by officials of the Department of Justice after
conferences with the President of the Federation.’’
With the House revision the term ‘‘color of official right’’
appeared for the first time.
The House Report, submitted along with its new ver-
sion of S. 2248 (H.R. 6926), was short. In addition to
reprinting the text of the new bill, it reprinted a letter writ-
ten by Homer Cummings, then Attorney General, to Hat-
ton W. Sumners, Chairman of the House Judiciary Com-
mittee. H.R. Rep. No. 1833, 73d Cong., 2d Sess. 2 (1934).
In United States v. Teamsters Local 807, the Supreme
Court placed heavy emphasis on this letter as a tool to
interpret the 1934 Act. The letter, which I have reprinted
in the margin,”* is particularly useful. By negative impli-
i6. “DEPARTMENT OF JUSTICE,
Hon. Hatton W. SuMNERS, Washington, D.C., May 18, 1934
Chairman of the Judiciary Committee, House of Representatives,
Washington, D.C.
Dear Mr. Sumners: I am enclosing herewith the new draft of
the anti-racketeering bill, S. 2248, which has been prepared upon the
informal suggestion of your committee as a substitute for the bill
which your committee has under consideration.
After a series of conferences with Mr. Keenan and Mr. Rice,
this draft has been definitely approved by Mr. William Green, presi-
dent of the American Federation of Labor, and James S. Easby-
Smith, Esq., counsel for Mr. Green.
We believe that the bill in this form will accomplish the purposes
of such legislation and at the same time meet the objections made to
the original bill.
The original bill was susceptible to the objection that it might
include within its prohibition the legitimate and bona fide activities
A26 Court cf Appeals Opinion
cation, the letter’s failure to discuss ‘‘extortion under
color of official right’’ suggests that the draftsmen did not
intend the prohibition to reaeh conduct not extortionate at
common law. One would expect at least a passing com-
ment to be made by the draftsmen if they intended to at-
tach revolutionary meaning to a term of art, long known
and used.
The conclusion that the statute was not intended to
revolutionize the meaning of ‘‘color of official right’’ is
buttressed by a comment made by Congressmen Oliver of
New York, who apparently submitted this bill in the House,
after it had cleared committee:
‘“‘This is merely the creation of an extortion statute
against those who extort money by force or violence
from those engaged in interstate commerce.’’ 78
Cong. Rec. 11402 (1934) (emphasis supplied).
16. (Cont’d.)
of employers and employees. As the purpose of the legislation is not
to interfere with such legitimate activities but rather to set up severe
penalties for racketeering by violence, extortion, or coercion, which
affects interstate commerce, it seems advisable to definitely exclude
such legitimate activities. ae ah
As the typical racketeering activities affecting interstate com-
merce are those in connection with price fixing and economic extor-
tion directed by professional gangsters, we have inserted sub-
paragraphs (a) and (b), making such activities unlawful when
accompanied by violence and affecting interstate commerce.
The Sherman Antitrust Act is too restricted in its terms and the
penalties thereunder are too moderate to make that act an effective
weapon in prosecuting racketeers. The antiracketeering bill would
extend the Federal jurisdiction in those cases where racketeering
acts are related to interstate commerce and are therefore of concern
to the Nation as a whole. ae
We have added a new provision prohibiting conspiracy as well
as the substantive acts and we have also added a separability clause
to make certain that the entire act will not be declared unconstitu-
tional in the event that its application to any circumstance is held
invalid.
We feel that this bill is a vital part of any Federal program to
suppress so-called ‘racketeering’ activities which have assumed Na-
tion-wide proportions.
Sincerely yours,
Homer CumMIncs, Attorney General”
Court of Appeals Opinion A27
There is little doubt that the draftsmen of the 1934
Act took the term ‘‘color of official right’’ from the New
York Penal Law of 1909. Section 850 of that law, which
defined the crime of extortion, read as follows:
‘Extortion is the obtaining of property from
another, or the obtaining the property of a corporation
from an officer, agent or employee thereof, with his
consent, induced by a wrongful use of force or fear, or
under color of official right.’’!
Compare this language with § 2(b) of the 1934 Act:
‘‘Obtains the property of another, with his con-
sent, induced by wrongful use of force or fear, or
under color of official right ;’’
The similarity between the two definitions must be more
than accidental.
While the meaning attributed to the term ‘‘color of
official right’’ by the New York legislature and courts is by
no means dispositive of the congressional intent in using
the phrase, it is highly persuasive both because its mean-
ing in New York has long been settled and because the
legislative history indicates no intention to change that
meaning.
The phrase ‘‘under color of official right’’ traces its
origin to a penal code prepared by David Dudley Field
and others. Commissioners of the Code, The Penal Code of
the State of New York (1865). Interestingly, the definition
of extortion in that code, is even closer to the one used in
the 1934 Act, than is New York’s 1909 version. The Field
-ersion provided:
‘*§613. Extortion is the obtaining of property
from another, with his consent, induced by a wrongful
use of force or fear, or under color of official right.’
17. Penal Law of 1909, § 850, as amended, Laws of 1917, ch.
— reprinted in N.Y. Penal Law, appendix §850 (McKinney
1967).
A28 Court of Appeals Opinion
In a note to that definition the Commissioners referred to
an old New York case, People v. Whaley, 6 Cow. 661 (N.Y.
Sup. Ct. 1827), for the derivation of the ‘‘color of official
right’’ language. Whaley involved a typical common law
extortion. A suit had been commenced on a note. On the
return date of the summons the plantiff did not appear.
After telling the defendant that he was going to tax the
plaintiff with costs, the justice secretly adjourned the case.
However, the defendant confessed judgment and paid the
amount he owed on the note into the court. The justice
collected a fee to which he was technically entitled only
if a judgment had been entered. But, the jury was per-
mitted to find, and did, that the plaintiff’s non-appearance
had caused the case to be discontinued. Thus no judgment
could have been entered since the discontinuance ousted
the justice of jurisdiction. The fee had been collected
‘‘under color of official right.’’ The court defined the
offense thus:
‘*Extortion signifies, in an enlarged sense, any op-
pression under color of right. In a stricter sense, it
signifies the taking of money by any officer, by color
of his office; either, where none at all is due, or not so
much due, or when it is not yet due.’’ Jd. at 663.
The Field Code does not appear to have been adopted
in its entirety. However, it served as a prototype for a
new penal statute, the Penal Code of 1881. Laws of 1881,
ch. 676. That enactment copied Field’s definition of ex-
tortion verbatim. Section 552 of the Penal Code of 1881.
But, significantly the 1881 Code expanded upon Field’s en-
actments dealing with extortion. For 4556 of the 1881
enactment contains the marginal notation ‘‘extortion com-
mitted under color of official right,’’ appended to a new
section not found in the Field Code:
‘*§ 556. A public officer, or a person pretending
to be such, who, unlawfully and maliciously, under
pretense or color of official authority,
Court of Appeals Opinion A29
1. Arrests another, or detains him against his
will; or
2. Seizes or levies upon another’s property; or
3. Dispossesses another of any lands or tene-
ments; or
4. Does any other act, whereby another person is
injured in his person, property, or rights;
Commits oppression and is guilty of misde-
meanor.’’
Section 556 was carried forward to the Penal Code of 1909,
being re-enacted ve-batim as 4 854.
An examination of the Penal Code of 1909 reveals
something else that is noteworthy. Section 854 (formerly
§556 reprinted, supra) is captioned ‘‘Oppression com-
mitted under color of official right.’’ It is clear that this
title was not added by McKinney, since the caption pre-
viously read ‘‘ Extortion committted under color of official
right’’ but was amended in 1945 to substitute the word
‘‘oppression’’ for ‘‘extortion.’’
What does all this tell us? Certainly the New York
statute did not contemplate a prosecution such as the one
we are now reviewing. The New York statute intended to
proscribe common law extortion which required an act or
pretended act in an official capacity. Even if I were to
accept the majority’s approach, and conclude that Mazzei
derived his de facto power solely from his position as state
senator, his actions were not those of ‘‘[a] public officer,
or a person pretending to be such [acting] ... under pre-
tense or color of official authority.’’ Remembering that
the common law term was ‘‘color of office’’ and not ‘‘color
of official right,’’ that the latter term had been known to
American jurisprudence for some 70 years before the 1934
Act, and that the legislative history suggests no reason to
interpret color of official right any differently from its
historical meaning, it offends all sense of logic to think
A30 Court of Appeals Opinion
that the draftsmen chose this term of art by accident, or
that they intended it to reach the offense committed by
Mazzei.
Putting this all to one side, however, I come to the
most disturbing feature of this case. If ‘‘color of official
right’’ does not mean common law extortion, what does it
mean? Does it give fair warning of the conduct which it
proscribes? Does it mean whatever the United States At-
torney in a given district says it means? Does it cover
payments to corporate officers or union officials’* as well as
to public officials? Unless we attribute to Congress the
intention to use the term to describe the classic common
law offense of extortion, which has a well-defined content,
then I submit that the disjunctive clause in the statute is
unconstitutionally vague. It simply gives no fair warning
of the conduct it proscribes. It is one thing to hold, as we
did in United States v. Kenny, supra, that Congress dis-
junctively prohibited both the not uncommon statutory
18. Cf. Bianchi v. United States, 219 F.2d 182, 193-94 (8th
Cir.), cert. denied, 349 U.S. 915 (1955):
“Defendants complain that under the instructions given the
jury could find defendants guilty if they obtained money under
color of office as union representatives. Defendants are referring
to the common law offense of extortion where, in case of public
officers, color of office takes the place of force, threats, and pres-
sure. No one contends that defendants are liable merely be-
cause they are union officials, and obtained the money. As to
this contention the trial court in ruling on motion for a new
trial said:
‘The only time such terms have come into this case
they were injected by the defendants. They appear once
in the charge and then at defendants’ request and in a
negative way. Defendants requested and the Court gave
their request number 54. It reads:
‘If a Union officer accepts money or property as
as a private individual and not in his official capacity
there can be no finding of extortion under color of
office however inconsistent with official duty may be
the acceptance of such money or property.’
The defendants are not in a position to object to an instruction
given at their request.”
Court of Appeals Opinion A31
type of extortion—use of threats—and the common law ex-
tortion—abuse of office. It is quite another to cut the dis-
junec’ive clause loose from the anchor of the common law
and set it adrift upon a sea of prosecutorial discretion.
In recent years the government has espoused a
startling broad view as to what conduct is proscribed by
the Hobbs Act. In United States v. Meyers, 44 U.S.L.W.
2003 (E.D. Ill., June 17, 1975), for example, it urged that
a non-incumbent candidate who elicited a pre-election pay-
off to award contracts to the payor after election fell
within the statute. The district court rejected this con-
tention; rightly so, I suggest. Yet the Meyers case is
closer to common law extortion than is this case, for the
payment was made in connection with the performance of
duties of the office to which the candidate aspired. If the
charge under which this case was submitted to the jury is
correct Meyers is an a fortiori case. I ask, however,
whether anyone reading this 1934 statute aimed primarily
at labor racketeering would have anticipated that it regu-
lated state election campaign financing. To me, at least,
it does not give fair warning to that effect.
V Conclusion
The Supreme Court has recently reiterated that an
‘‘ambiguity concerning the ambit of criminal statutes
should be resolved in favor of lenity.’’ Rewis v. United
States, 401 U.S. 808, 812 (1971); United States v. Bass, 404
U.S. 336, 347 (1971). This rule of narrow construction is
rooted in the belief that due process requires that fair
warning should be given as to what conduct may be sub-
ject to the sanctions of the criminal law. See United
States v. Bass, supra, at 348; United States v. Wiltberger,
18 U.S. (5 Wheat.) 76, 95-6 (1820). Otherwise far too
much discretion will be placed in the hands of executive
branch enforcement officials, and it will inevitably be
abused. In the present climate of mistrust of persons in
public life—a mistrust that unfortunately cannot be said
A32 Court of Appeals Opiwmion
to be undeserved—it is tempting to hold that since what
Senator Mazzei did was reprehensible he ought to be pun-
ished by some authority, and to stretch the Hobbs Act to
meet the occasion. Courts must resist that temptation in
the interest of the long-range preservation of limited and
even-handed government. If in the guise of regulating
interstate commerce Congress wants to prohibit influence
peddling for hire in state and local government it should
be far more specific inan in §1951(b)(2). I would read
no more into the clause ‘‘under color of official right’’ than
the common law definition of extortion. This record does
not establish common law extortion and neither the court’s
charge nor the majority’s description of the facts define
it. I would reverse the conviction.
istrict Court Opinion A33
APPENDIX B.
UNITED STATES OF AMERICA
v.
FRANK MAZZEI.
Crim. No. 74-319.
Unrrep Srates District Covrt,
W. D. Pennsyivania.
March 17, 1975.
Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa.,
for plaintiff.
H. David Rothman, Pittsburgh, Pa., for defendant.
Opinion and Order.
Marsu, Chief Judge.
After conviction by a jury the defendant, Frank
Mazzei, filed a ‘‘Motion for Judgment of Acquittal or in
the Alternative for a New Trial.’’ In our opinion the
motion and the alternative motion should be denied.'
The motion sets forth the following reasons in support
thereof:
2. The court erred in denying the motion for judg-
ment of acquittal.
3. The verdict was contrary to law and against the
weight of the evidence.
1. The defendant filed a “Motion to Allow the Filing of Addi-
tional Reasons After a Review of the Transcript.” The motion was
granted. The transcript was filed January 23, 1975. The defend-
ant did not file any formal additional reasons, but submitted his brief
on February 10, 1975 and the government submitted its brief on
February 19, 1975. Oral argument was held on February 28, 1975.
A34 District Court Opinion
4. Error in refusing to declare a mistrial on the
prosecutor’s examination of Mr. Kelly wherein he
interjected the notion that defendant might be
pocketing the money received.
5. Error in allowing the witness Williams to testify
to the witness Kelly’s state of mind.
6. Error in ruling relative to the scope of the cross-
examination of defendant in the event he testified
on his own behalf which deprived defendant of the
opportunity to testify in his own behalf and vio-
lated his privilege against self-incrimination.
7. Error in failing to declare a mistrial when the
United States Attorney argued in his closing
speech that the taxpayers of Pennsylvania could
have received these leases for $20,000 less.
8. Error in refusing to charge as requested and in
failing to correct its charge as requested in the
particulars which appear of record.
9. Error in declining counsel’s request for an indi-
vidual voir dire of the prospective jurors.
10. Error in denying defense counsel’s request to close
last or, in the alternative, to make a brief argu-
ment in rebuttal.
11. Error in denying the motion to dismiss the indict-
ment with prejudice made before the selection of
the jury in view of the pretrial publicity which
appeared on the eve of trial.
We summarize the facts in the light most favorable to
the verdict winner. Glasser v. United States, 315 U. S. 60,
80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v.
Dukow, 465 F. 2d 688 (3rd Cir. 1972).
The defendant is an elected senator for the Common-
wealth of Pennsylvania having been elected in the Forty-
Third Senatorial District which includes the area known
District Court Opinion A35
as the South Side, Pittsburgh, Pennsylvania. He was first
elected in a special election for a one-year term to begin in
January, 1968, and was subsequently re-elected for four-
year terms commencing in January, 1969, and January,
1973.
BMI, Inc. (BMI) is the parent corporation and hold-
ing company of 15 or 16 subsidiaries, most of which are
engaged in interstate commerce. BMI and its subsidiaries
were served by the same Board of Directors. Through a
subsidiary, BMI purchased a three-story building at 700
Bingham Street in the South Side on March 1, 1967. BMI
occupied only one-half of the second floor, or only about
4,000 square feet of the total 60,000 square feet contained
in the building. The remainder of the building was vacant
and, without tenants, there were no rentals to increase the
profits of the corporation or to defray the expense of the
building. Attempts by BMI to rent or sell the building
had been unsuccessful.
BMI was the nerve center of the accounting end of the
business of all the subsidiary corporations. Practically all
of the financial matters of BMI and its subsidiaries, includ-
ing interstate financing transactions, were handled from the
South Side location by means of interstate telephone
facilities and by use of the mails. The payroll for BMI
and the subsidiaries was handled through a single payroll
account maintained in the Iron and Glass Bank located in
the South Side not far from the BMI building.
Occupants of the BMI quarters in the South Side were:
Leo B. Kelly, Vice President and Secretary/Treasurer of
BMI and its subsidiaries, and a certified public accountant ;
Willard Bellows, the Controller; and Joseph Logan, As-
sistant Treasurer. Lawrence Williams, the President of
BMI, had his office at another location in the Pittsburgh
area. At times, the Board of Directors of BMI and its
subsidiaries held meetings in the BMI building.
Mr. Kelly was also a director of the Iron and Glass
Bank. Gerald R. Creehan was Vice President and Cashier
A36 District Court Opinion
of the bank. BMI was one of the bank’s largest customers
and Mr. Kelly had told Mr. Creehan of his desire to obtain
tenants for the BMI building. According to Mr. Kelly’s
testimony, sometime prior to November 4, 1971, Mr. Cree-
han had heard that the defendant, Senator Mazzei, who
had sponsored the State Lottery Bill, was looking for space
in the South Side for the Pennsylvania Lottery Commis-
sion. When Mr. Creehan mentioned this, Mr. Kelly asked
him to set up a meeting with the Senator. A luncheon
meeting was arranged in late November, 1971, at which
time Mr. Kelly entertained the Senator and Mr. Creehan,
and told Senator Mazzei that BMI desired to lease space in
its building.
A short time later the Senator visited the BMI build-
ing with a Samuel Myers and informed Mr. Kelly that the
State would lease the first floor at the rate of $4.25 per
square foot. Mr. Kelly did not negotiate the lease or price
with anyone connected with any executive department of
the State Government, although there were inspections
made by employees of executive agencies. On January 8,
1972, Mr. Kelly again entertained the Senator and Mr.
Creehan, this time at a dinner attended by the men’s wives.
In his testimony Kelly characterized the dinner as pri-
marily a business meeting.
The defendant made it clear to Mr. Kelly that he ex-
pected a kickback. Mr. Kelly testified that the Senator told
him at a January 11, 1972 meeting in Mr. Kelly’s office
that:
‘it was the practice on all state leases that a ten per
cent of the gross amount of the rentals would be paid
to a senate finance re-election committee and that these
funds were used for the incumbents or the senators of
both parties, and that that would have to come out of
the four and a quarter.’’ (Tr, p. 207).
Penciled calculation (GX 7) made by the Senator indicated
that the net amount of the rental for five years would be
District Court Opinion A37
ten percent less than the gross. The Senator asked Mr.
Kelly if that was satisfactory and Mr. Kelly replied in the
affirmative. The Senator siated that ten percent should be
paid in cash at the beginning of the lease term and inquired
of Mr. Kelly if that created any problem. Mr. Kelly re-
plied in the negative. Following the meeting, Mr. Kelly
informed Mr. Bellows and Mr. Logan of the terms of the
arrangement and showed them the paper on which the
Senator made his calculations. Mr. Kelly also informed
Mr. Williams and other stockholders about the arrange-
ment.
A lease proposal form was mailed to the State by
BMI on January 13, 1972. An unexecuted lease arrived
from Harrisburg about February 23rd. The lease was ex-
ecuted by BMI officers and returned to Harrisburg. BMI
received the final lease executed by the Commonwealth
about March 23, 1972. On March 24, 1972, the Senator
called at the Iron and Glass Bank for the money. At the
direction of Mr. Kelly, Mr. Creechan and another bank
employee delivered $8,755.00 in cash to the defendant at
his office which was almost across the street from the bank.
There was no evidence that this kickback was ever paid
to a senate re-election committee as the Senator had rep-
resented.
In November or December, 1972, Senator Mazzei in-
quired of Kelly about leasing space to the Department of
Labor and Industry. An employee of the Department
visited the premises on December 27, 1972. Subsequently,
the defendant advised Mr. Kelly that a rate of $4.90 per
square foot would be paid by the State and also advised
that the same arrangement would be in effect whereby ten
percent would be paid to the re-election committee. At a
July 18, 1973 meeting in Kelly’s office the Senator began
calculations on a BMI note pad to determine the total
rental for the five-year term of the second lease. Mr.
Kelly completed these calculations and determined that the
kickback would be about $11,300.00 (GX 12).
A38 District Court Opinion
When BMI submitted this lease proposal, however, it
requested a rental rate of $4.35 per square foot because it
did not wish to provide janitorial service or trash removal.
Mr. Kelly testified that Senator Mazzei later called him to
say that ‘‘the Commonwealth or the Department, whoever
takes care of leasing’’ (Tr. p. 262) would not accept the
premises without these services and that the rate should
be $4.90 and the proposal should include janitorial and
trash removal services. During the telephone conversation
with the Senator, Mr. Kelly agreed to these changes. No
amended proposal form was ever submitted by BMI, but
when the lease was received from the State it provided for
a rate of $4.90 per square foot.
On Friday, July 20, 1973, Mr. Kelly was told by Sen-
ator Mazzei that the second lease had been executed by the
State and that the Senator needed the money to take with
him to Harrisburg on Monday. Mr. Kelly, accompanied
by Mr. Williams, President of BMI, obtained $11,299.56 in
cash from the bank and walked to the defendant’s office
where Mr. Kelly personally handed the money to the de-
fendant’s secretary. Later that same day, in a telephone
conversation with Mr. Kelly, the Senator acknowledged
receipt of the money. There was no evidence that this
kickback was paid to a senate re-election committee. De-
fendant and his wife were entertained in Florida in early
1974 by an employee of BMI because a third lease with the
State was pending.
The defendant indicated a consciousness of wrong-
doing when he subsequently, according to Mr. Kelly’s tes-
timony, told Mr. Kelly not to reveal the payments to any-
one. Latcr when the Senator visited Mr. Kelly’s office and
learned that Mr. Kelly had told his attorney everything
about the leases and the payments, the Senator told Mr.
Kelly that the FBI would wonder why he was in Kelly’s
office and asked Mr. Kelly to buy a ticket for a dinner for
another senator. On cross-examination, Mr. Kelly stated
that he felt the defendant, being an elected official, could
handle the leases and obtain them for BMI.
District Court Opinion A39
Cash given to the defendant in the total sum of $20,-
054.56 was withdrawn on the payroll accounts of BMI and
certain of its subsidiaries. There was no evidence that
either BMI or the defendant treated the payments as real
estate commissions. The kickbacks were not deducted as
expenses in the corporate tax returns of BMI.
The prosecution contended that the ten percent rental
payments were extorted from BMI by the defendant
‘‘under color of official right.’’ The defendant contended
the payments were political contributions, albeit illegal
contributions from a corporation, obtained by the Senator
in his unofficial role as a politician and not in his official
capacity as a state senator. There was no evidence show-
ing what the defendant did with the money after he re-
ceived it. The actual existence of a bi-partisan senate
committee for re-election of incumbent senators was not
established in the evidence. No member of such a com-
mittee was called to prove its existence or the receipt of
any part of the $20,054.56. The jury rejected the defend-
ant’s contentions that these payments were political con-
tributions and found that this money was extorted by the
defendant ‘‘under color of official right.’’
The defendant’s 10 reasons in support of his motion
for new trial, previously listed above, will now be dealt
with in order.
REASONS 2-3
In our opinion the verdict of guilty was in accord with
the weight of the evidence, was not contrary to law, and the
motions for judgment of acquittal were properly denied.
Arguing in support of his motion for judgment of
acquittal, defendant apparently contends that to pass con-
stitutional muster the Hobbs Act, 18 U. S. C. § 1951, must
require notice that extortionate conduct will interfere with
interstate commerce, and that, absent such notice, the
statutory definition of extortion is constitutionally vague.
We do not agree.
A40 District Court Opinion
The purpose of the Hobbs Act is to free interstate com-
merce from the destructive burdens of extortion. Stirone
v. United States, 361 U. S. 212, 215, 80 S. Ct. 270, 4 L. Ed.
2d 252 (1960); United States v. Green, 350 U. S. 414, 420,
76 S. Ct. 522, 100 L. Ed. 494 (1956). The Act expressly
proscribes extortion which affects commerce ‘‘in any way
or degree’’ and clearly represents an attempt by Congress
to exercise its full power under the commerce clause to
reach extortionate conduct. Assuredly, the Act requires
proof of an effect on commerce as a substantive element of
any violation, but this is merely a jurisdictional element
underlying the power of Congress to reach the conduct. An
essential part ef a Hobbs Act violation is extortion, and the
fact that interstate commerce is interfered with is merely
the basis for federal jurisdiction. It is wholly irrelevant to
the protection of commerce that the perpetrator of an ex-
tortionate scheme know that interstate commerce is in-
volved, and such a requirement would defeat the Congres-
sional purpose of freeing commerce from all extortion.
Contrary to defendant’s contention throughout his brief,
the jury did not have to find that he could reasonably fore-
see or anticipate an interference with commerce before he
could be convicted of violating the Hobbs Act. See United
States v. Iannelli, 477 F. 2d 999, 1002 (3rd Cir. 1973), cert.
granted, 417 U. S. 907, 94 S. Ct. 2602, 41 L. Ed. 2d 211
(1974); United States v. Roselli, 432 F. 2d 879, 891 (9th
Cir. 1970), cert. denied, 401 U.S. 924, 91 S. Ct. 883, 27 L. Ed.
2d 828 (1971) and United States v. Blassingame, 427 F. 2d
329 (2nd Cir. 1970), cert. denied, 402 U. S. 945, 91 S. Ct.
1629, 29 L. Ed. 2d 114 (1971). Cf. United States v. Bolin,
423 I". 2d 834, 836-857 (9th Cir.), cert. denied, 398 U. S. 954,
90 S. Ct. 1882, 26 L. Ed. 2d 297 (1970).
Likewise, defendant’s argument that knowledge of
interference with commerce is in some manner a constitu-
tional predicate to criminal responsibility has no basis in
law. The scope of congressional police power under the
commerce clause was considered by the Supreme Court in
District Court Opinion A41
Perez v. United States, 402 U. S. 146, 91 S. Ct. 1357, 28
L. Ed. 2d 686 (1971), and it is clear that the power to pro-
tect interstate commerce is not premised on, or limited by,
a requirement of specific intent to interfere with commerce.”
The decisions under the Hobbs Act clearly reflect this.
United States v. Addonizio, 451 F. 2d 49, 76-77 (3rd Cir.
1972) ; United States v. Pranno, 385 F. 2d 387, 389-390 (7th
Cir. 1967).*
The requisite impact on commerce can be de minimus,
United States v. DeMet, 486 F. 2d 816, 822 (7th Cir. 1973).
The jury was justified in finding interference with commerce
based upon depletion of BMI’s cash assets in an amount in
excess of $20,000. United States v. Addonizio, supra, 451
F. 2d at 77; United States v. Provenzano, 334 F. 2d 678,
692-693 (3rd Cir. 1964).
Insofar as the defendant contends that the phrase
‘‘under color of official right’’ as used in §1951(b)(2) is
void for vagueness, it is our opinion that this language is
all that is constitutionally required in that it would give a
person of ordinary intelligence fair notice of what is pro-
scribed by the statute. Grayned v. City of Rockford, 408
U. S. 104, 108-114, 92 S. C. 2294, 33 L. Ed. 2d 222 (1972).
The defendant’s argument that the case should not have
been submitted to the jury because the defendant did not
have ‘‘official capacity’’ to channel the leases to BMI cannot
2. In Perez, supra, the court held that Congress could regulate
purely intrastate extortionate credit transactions if it found that,
considered as a class, such activities had an ultimate effect on com-
merce.
3. In response to a similar contention the court in Pranno, supra,
385 F. 2d at 389-390, stated:
“Defendants seem to contend that it must be proved that defend-
ants contemplated and intended that interstate commerce would
be affected.
All that must be proved, however, is that defendants conspired
to commit extortion, and that the natural effect of carrying out
their threat, whether they were conscious of it or not, would
affect commerce.” (Footnote omitted).
A42 District Court Opinion
be sustained. The evidence was overwhelming that the de-
fendant senator rep: :sented to Mr. Kelley that he had ‘‘de
facto’’ power to procure state leases. Mr. Kelly believed
this and, without negotiating with any other person, paid
$20,054.56 to the Senator for procuring those leases for
BMI. The Senator’s representations and actions caused
Kelly to reasonably believe that the defendant, as a state
senator, had the capacity and the power to procure the
leases; the evidence strongly indicates he did have the
power, within rate limitations, to procure leases for BMI
because of his official position. He did not ask for a real
estate commission; he did not ask for a political contribu-
tion. He wrongfully represented that it was the practice
that state lessors should pay him, a state senator, ten per-
cent of the gross rental for a senate re-election committee,
although there was no independent proof of the existence
of such a committee. As in United States v. Price, 507
F’, 2d 1349, 1350 (4th Cir. 1974), we reject the defendant’s
contention ‘‘that guilt may be predicated only upon a fur-
ther finding that he perverted the legal or statutory power
(de jure) of his legal public office. It is enough that he
appeared to act under . . . ‘color of official right.’’’ See
also: United States v. Braasch, 505 F. 2d 139, 151 (7th Cir.
1974); United States v. Staszcuk, 502 F. 2d 875, 878 (7th
Cir. 1974). Senator Mazzei, a public official, wrongfully
took money not due him or his office.
Even under the common law definition of extortion, it
was not necessary to show that the public officer received
the extorted money for the performance or non-performance
of an act specifically within the scope of his official duties.
See: Commonwealth v. Wilson, 30 Pa. Super. 26 (1906).*
4. In Wilson, supra, at 30, Judge Rice explained common jaw
extortion as follows:
“The form of extortion most commonly dealt with in the deci-
sions is the corrupt taking by a pesron in office of a fee for serv-
ices which should be rendered gratuitously; . . . but this is not
a complete definition of the offense, by which I mean that it does
not include every form of common-law extortion. . . . Black-
District Court Opinion A43
See also: Commonwealth v. Neff, 195 Pa. Super. 420, 428,
171 A. 2d 561, 565 (1961).
Defendant argues that the government did not prove
that the defendant took the oath of office and, therefore, did
not prove he was in fact a senator. On the contrary, we
find that the weight of the evidence introduced by the gov-
ernment clearly establishes that the defendant Mazzei was
a state senator. Official election returns introduced into
evidence show that Mazzei was first elected in a special
election held in November, 1967 and that he was subse-
quently re-elected to full four-year terms in November,
1968 and November, 1972. In fact, in the 1972 election
Mazzei was the candidate for both parties receiving 56,685
votes as a Democrat and 29,264 write-in votes as a Re-
publican.®
4. (Cont'd. )
stone defines it to be ‘An abuse of public justice which consists
in an officer’s unlawfully taking, by color of his office, from any
man, any money or thing of value that is not due to him, or more
than is due, or before it is due:’ 4 Bl. Com. 141. This defini-
tion without substantial change of phraseology has been adopted
in the Pennsylvania decisions. An essential element of the
offense is that the fee or reward must be taken by the officer by
color of his office, but this does not necessarily imply that it must
be taken for an act or service which it is his duty, or he has
discretionary power, to perform. It does imply, however, an
exercise of official power possessed, or pretended to be possessed,
by the officer, as distinguished from an act which could have
been performed by any other person.” (Emphasis supplied)
5. While discussing another matter on cross-examination, Mr.
Kelly testified that he had gone to Harrisburg for the Senator's
swearing-in, but that Kelly arrived late and missed the actual oath of
office. Testimony by Mr. Creehan and Mr. Kelly indicated that
they had knowledge that the defendant had sponsored the bill estab-
lishing the Lottery Commission in Pennsylvania. Even if the evi-
dence presented was insufficient to prove the defendant is a state
senator, the evidence did provide a sufficient basis from which the
court could take judicial notice of the fact that defendant took the
oath of office after being elected to the Senate, and that at all times
pertinent to this case he was a member of the Pennsylvania Senate.
A44 District Court Opinion
For the foregoing reasons we think it would be error
to grant the defendant’s motion for judgment of acquittal.
REASON 4
It is our opinion that a mistrial was not warranted
when the prosecutor interjected the notion that Senator
Mazzei might have pocketed the money.
What the defendant did with the $20,054.56 was
relevant to show his motive and intent. We think it quite
relevant to inquire of Kelly what he knew of defendant’s
intention concerning the disposition of the money. In
view of the failure of the defendant to prove he delivered
the money to the senate finance committee, as he rep-
resented to Kelly, the prosecutor’s suggestion, or ‘‘no-
tion,’’ even if improper at the time was not of such preju-
dicial magnitude requiring a mistrial.
Moreover, the jury was subsequently instructed (Tr.
p. 944) as defendant requested that ‘‘the use to which de-
fendant put the money paid to him was not an issue in this
case.”’
REASON 5
Defendant argues that the testimony of Lawrence Wil-
liams about a telephone conversation with Leo Kelly was
prejudicial in that it allowed the government to establish
through Williams an element of fear in the victim Kelly
which had not been established through Kelly’s own testi-
mony. In an extrotion case where elements of fear or
color of official right are involved, proof of the state of
mind of the victim is relevant. This proof may come
through the victim’s own testimony or through testimony
of statements made by him to others. United States v.
Kennedy, 291 F. 2d 457, 458 (2nd Cir. 1961). Of course
to be admissible, such testimony must not run afoul of the
hearsay rule. In this instance, however, it does not matter
whether or not the evidence is hearsay. Nuttall v. Read-
ing Company, 235 F. 2d 546, 551 (3rd Cir. 1956). Me-
District Court Opinion _ A4d
Cormick, Evidence ‘ 249 (2nd ed. 1972). One of the excep-
tions to the rule excluding hearsay allows a witness to
testify to a statement of the declarant’s then existing state
of mind. Even if it is accepted that Williams’ testimony
about Kelly’s statement was submitted to establish the
truth of the matter asserted, the testimony was properly
received under this exception.
Defendant’s argument that the testimony was preju-
dicial is without merit for two reasons. First, the rele-
vance of the testimony in showing Kelly’s state of mind far
outweighed any prejudicial effect ; and second, the issue of
fear on the part of Kelly never reached the jury because,
at the close of the government’s case, the defendant’s mo-
tion for a judgment of acquittal was granted as to that
portion of the indictment which charged that money had
been exorted ‘‘by the wrongful use of fear.’’
REASON 6
The defendant asserts the court erred in its ruling
(Tr. pp. 703-708, 838-842) relative to the scope of cross-
examination of defendant in the event he testified, which
ruling ‘‘deprived defendant of the opportunity to testify
on his own behalf.’’*® Counsel for defendant specifically
stated he would limit ‘‘direct testimony of the defendant
to the purpose for which the money was paid and the
purpose for which he solicited it.’’ (Tr. p. 838) The de-
fendant contended that in light of this offer he could not
be cross-examined relative to the use of the money he re-
ceived from BMI. We disagree.
It is well settled that when a defendant takes the stand
on his own behalf he is subject to full cross-examination
just es any other witness. United States v. Benson, 487
F. 2d 978, 982 (3rd Cir. 1973); United States v. Lowe, 254
F. 2d 919, 922 (3rd Cir. 1956). Regardless of whether we
adopt the view which limits cross-examination to the sub-
6. See paragraph 6 of the defendant’s motion for judgment of
acquittal or in the alternative for a new trial .
A46 District Court Opinion
ject matter of direct examination,’ or the view which al-
lows a witness to be cross-examined on any matters rele-
vant to the case,* the testimony which apparently would
have been elicited from defendant in light of his offer
would have allowed the prosecution to proffer questions as
to the ultimate use of the money. While it is true that the
ultimate use of the money would not be a defense to the
extortion charge, how the defendant disposed of the money
would be relevant to the defendant’s intent in soliciting
and receiving the payments, the very matters which
were to be the subject of defendant’s ‘‘limited’’ direct
examination. Such questioning would also be relevant as
to the credibility of Mr. Kelly, who had testified that de-
fendant told him it was the practice on all state leases that
ten percent of the gross rental was payable to a senate re-
election committee.
We also disagree with defendant’s contention that this
refusal to limit cross-examination if defendant had taken
the stand was in effect a denial of defendant’s Fifth
Amendment right against self-incrimination. Defendant’s
voluntary testimony on the matters described in his coun-
sel’s offer to the court would have been a waiver of his
privilege as to all other relevant facts. Johnson v. United
States, 318 U. S. 189, 195, 63 S. Ct. 549, 87 L. Ed. 704
(1943); United States v. Weber, 437 F. 2d 327, 334 (3rd
Cir. 1970) ; 8 Wigmore, Evidence (McNaughton Rev. 1961)
§ 2276(2). To allow the defendant to testify as to his
purpose in soliciting and receiving the payments, which
defendant contended were simply political contributions,
without allowing the prosecutor to probe this statement of
purpose with relevant questions as to the ultimate dis-
position of the money would have distorted the factual pic-
ture before the jury.
7. Federal Rules of Evidence, Rule 611(b) as approved January
2, 1975 (effective July 1, 1975).
8. United States v. Green, 373 F. Supp. 149, 154 (E. D. Pa.
1974); Cf. United States v. Hykel, 461 F. 2d 721, 728 (3rd Cir.
).
District Court Opinion A47
Considering all of the above, we find no error in our
refusal to limit the scope of cross-examination of the de-
fendant.
REASON 7
The defendant contends a mistrial should have been
granted when the prosecutor argued that the taxpayers of
Pennsylvania could have received the BMI leases for
$20,000 less. We find no merit in the contention of the
defendant.
As to this contention the testimony of the defendant’s
witness, Coll, a field representative for the Bureau of Real
Estate, Department of Property and Supplies, on cross-
examination, responded in the affirmative to the question
whether he would have been more satisfied if he could have
obtained the leases from BMI for $20,000 less. (Tr. p.
790) He also testified he sought to get the lowest rental
conforming to the standards and requirements of his
agency. (Tr. p. 789) Therefore, the argument of the
prosecution had an evidential basis. In any event, the re-
mark was not of such prejudicial magnitude which would
require a mistrial.
REASON 8
The defendant asserts the court erred in refusing to
charge as requested and in failing to correct its charge
as requested.
Specifically, the defendant excepted ‘‘to the failure to
charge on the common law definition of extortion as op-
posed to the definition that the court has given.’’ (Tr. p.
oe contends that under the common law definition of
color of official right the jury should have been charged
that the money received must have been claimed or ac-
cepted under right of office and the person paying must
have yielded to official authority.
A48 District Court Opinion
We do not find that there is as great a distinction as
defendant contends between the common law and the law
under the Hobbs Act in this regard. However, the appli-
cable law in this case was the Hobbs Act and our instruc-
tions fully covered the meaning of ‘‘extortion’’ as used in
the Hobbs Act and conformed to the principles set forth by
Mr. Justice Clark in Braasch, supra, 505 F. 2d at 150-151.
(Tr. pp. 942-943)
The defendant seems to except to the fact that the
charge should have informed the jury to distinguish be-
tween ‘‘motivation for payment focused on the defendant’s
position’’ and ‘this ability to exert political influence.’’
sut the jury was told in emphatic terms that:
‘If you (the jury] find from the evidence that BMI’s
treasurer, Mr. Kelly voluntarily made political contri-
butions out of the funds of BMI, Ine. to the defendant
for the re-election of incumbent state senators of both
political parties and not as kickbacks demanded by the
defendant for procuring state leases, you should find
the defendant not guilty.
Political contributions made by a corporation may be
illegal, but if these illegal contributions were freely
and voluntarily made by the officers of BMI to the de-
fendant, and not wilfully extorted by the defendant as
kickbacks under color of official right, he is not guilty
of extortion.’’ (Tr, pp. 944-945)
The defendant also takes exception to the failure to
charge on the offense of bribery. Since the defendant was
9. In applying the common law definition of extortion, the
Pennsylvania Superior Court upheld the conviction of a police official
who had no lawful authority to grant the privilege sought by the
victim of the extortion and who never actually declared that he had
such authority, but whose conduct was tantamount to an assertion
and use of his official authority as a cover for his act of obtaining a
payment to which he was not entitled. Commonwealth v. Wilson,
30 Pa. Super. 26, 31 (1906). See the common law definition of
extortion set out in footnote 4, supra.
District Court Opinion A4S
not charged with bribery, such an instruction may have
been confusing and certainly was unnecessary.
The defendant excepted ‘‘to the failure to charge that
as to interstate commerce,—the government does have to
prove that the defendant knowingly and directly involved
himself in some way with the business of the corporation
or the entity that he affected in commerce.’’ Without re-
peating the instructions relating to interstate commerce
(Tr. pp. 937-941 and Tr. pp. 943-944), in our opinion the
jury was adequately instructed on the issues of interstate
commerce,
As to the defendant’s final general exception, we re-
iterate that there was no issue concerning a distinction
between official duties and political functions. So long as
the motivation for the payments focused on the Senator’s
office, the Hobbs Act is applicable. Braasch, supra, 505
F. 2d at 151. The issue here was whether the defendant
extorted money from BMI under color of official right.
REASON 9
Individual questioning of every juror was not required
in this case. Instead, the court addressed general questions
to the entire array and followed-up by questioning indi-
vidually those whose responses to any of the initial in-
quiries on pretrail publicity raised the possibility that they
might have formed an opinion on the case. (Tr. pp. 61-70)
This method was in accord with recommended procedures
outlined in the American Bar Association’s Standards Re-
lating to Fair Trial and Free Press §3.4(a) approved by
the Third Circuit in United States v. Addonizio, 451 F. 2d
49, 67 (3rd Cir. 1972) for use by the district court’s in this
circuit. This same procedure was upheld in United States
v. Liddy, 509 F. 2d 428 (D. C. Cir. 1974).
Furthermore, when a publicity question arose during
the trial, each juror was questioned individually under oath
as to whether or not he or she had read or heard any such
publicity. (Tr. pp. 748-757)
A50 District Court Opinion
REASON 10
The traditional practice in this district in both state
and federal courts is to have the prosecution, the party
with the burden of proof in a criminal case, argue last to
the jury. There was no error in following that practice in
this case. The order of argument is a matter within the
discretion of the trial court. United States v. El Rancho
Adolphus Products, 140 F. Supp. 645, 649-650 (M. D. Pa.
1956), aff’d, 243 F. 2d 367 (3rd Cir. 1957).
REASON 11
The court found the pretrial publicity to be neither ex-
tensive nor prejudicial. We still do not find it to be preju-
dicial and in our opinion there was no error in that regard.
CONCLUSION
Additional errors were set forth in defendant’s brief
which were not raised in his formal motion for new trial.
Practically every ruling adverse to the defendant was fully
argued pro and con at the trial; the reasons for the rulings
appear in the record and need no further discussion here.
As to the additional allegations of error, we do not find
them, either individually or cumulatively, to present suffi-
cient grounds for a new trial.
An appropriate order will be entered.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.