Opposition Brief — Meyers v. United States

Supreme Court, 0. &

FILED

SEP 25 1976 '

No. 75-1833 MICHAEL RODAK, JR_ CLERK |

In the Supreme Court of the United States

OcTOBER TERM, 1976

CHARLES MEYERS and JACK SCOVILLE, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

RoBERT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

WILLIAM C. Brown,

Attorney,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 75-1833

CHARLES MEYERS and JACK SCOVILLE, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. C)

is reported at 529 F. 2d 1033. The order of the district

court (Pet. App. B) is reported at 395 F. Supp. 1067.

JURISDICTION

The judgment of the court of appeals was entered

on February 12, 1976. A petition for rehearing was

denied on May 21, 1976 (Pet. App. D). The petition

for a writ of certiorari was filed on June 21, 1976.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

Whether a candidate for public office, by corruptly

agreeing to take money in exchange for his future

(1)

Iv

official acts in the awarding of public contracts, commits

the Hobbs Act offense of conspiring to affect commerce

by “the obtaining of property from another, with his

consent, induced ** * under color of official right”

(18 U.S.C. 1951(b)(2)).

STATEMENT

In a one count indictment returned in the United

States District Court for the Eastern District of Illinois,

petitioners were charged with having conspired to affect

commerce by extortion, in violation of the Hobbs Act,

18 U.S.C. 1951 (Pet. App. A). Prior to trial, the district

court granted petitioners’ motion to dismiss the indict-

ment (Pet. App. B). On the government's appeal, the

court of appeals reversed and remanded the case for

trial (Pet. App. C).

For purposes of the motion to dismiss the indictment,

the parties stipulated (Pet. App. E) that petitioners

were candidates for the office of Trustee of the East

Side Levee and Sanitary District in East St. Louis,

Illinois, having obtained the nomination as a result of

a primary election held in March 1972. Both petitioners

were elected to that office in November 1972 and assumed

their public duties in December 1972. Neither petitioner

was a public office holder prior to December 1972.

The indictment alleged that from September 1972

until January 1973 petitioners conspired “to affect

commerce by obtaining property of another, with his

consent, induced under color of official right” (Pet.

App. Al-A2). It alleged that petitioners conspired with

others “to obtain in excess of $6,000.00, individually,

that [petitioners] were not entitled to, in consideration

for their future official acts as trustees * * * so that

[petitioners] would suspend their independent and un-

biased judgment on the merits when considering the

awarding of contracts” (Pet. App. A2).

The parties stipulated that the conspiracy was formed,

and the payments alleged in the indictment were made,

if at all, in October 1972 (Pet. App. AI9). It was

also stipulated that, if such payments were made, peti-

tioners retained the money through May 1973, after they

had taken office (ibid.).

The district court granted petitioners’ motion to dismiss

the indictment, holding that “[a] mere candidate for

public office cannot obtain property from another with

that person’s consent induced under color of official

right” (Pet. App. A7).

The court of appeals reversed and remanded for the

purpose of reinstating the indictment. It held that,

“within the meaning of the Hobbs Act, it is a crime

for candidates for political office to conspire to affect

commerce by extortion induced under color of « .cial

right during a time frame beginning before the election

but not ending until after the candidates have obtained

public office” (Pet. App. Al2)—i.e., where “[t]he object

of the conspiracy [is] not the suspension of the unbiased

judgment of a private individual, but * * * the suspension

of the unbiased judgment of a [future] public official,”

to be exercised after he takes office (Pet. App. A14).

“Meyers and Scoville are charged with having sold the

de jure power which they would acquire in the future.

* * * We think that it is no less of a crime under the Hobbs

Act to sell one’s public trust before, rather than after,

one is installed in public office” (Pet. App. A1l6-A17).

ARGUMENT

1. This petition challenges the court of appeals’

reversal of the district court’s pretrial dismissal of the

indictment. That reversal puts petitioners in the same

position as if the district court had ruled against them

in the first instance, a ruling that would not have been

4

subject to interlocutory appez!. United States ex rel.

Rosenberg vy. United States District Court, 460 F. 2d

1233 (C.A. 3): United States vy. Garber, 413 F. 2d 284

(C.A. 2).

Although this Court has jurisdiction of the case, even

at this interlocutory stage, this is not a situation in

which “any review by this Court * * * must be immediate

to be meaningful.” Federal Power Commission v. Trans-

continental Gas Pipe Line Corp., 423 U.S. 326, 331.

On the contrary, if petitioners are tried and acquitted,

the issue they tender here will not require final

resolution in this case. If, on the other hand, they are

convicted in the district court and their convictions

are affirmed by the court of appeals. they will be

free to present their contentions to this Court at that

time in a tresh petition for a writ of certiorari raising

the same issue as the one presented here.

In these circumstances, it would be appropriate for the

Court to deny the present petition regardless of the merit

it might have were the issue ripe for review after a

final judgment. See Brotherhood of Locomotive Firemen

V. Bangor & Aroostook Railroad Co., 389 U.S. 327.

2. Im any event, the decision of the court of appeals

is correct, and further review is not warranted.

Petitioners concede that the Hobbs Act would be

applicable if, at the time they agreed to take money

in return for suspending their unbiased judgment in

awarding public contracts, they had already assumed

their official duties (Pet. 5-6). Their sole contention

is that only a person who holds public office can induce

another's consent “under color of official right.” But

nothing in the words or the purpose of the statute

compels that result.

5

The Hobbs Act provision at issue was intended, in

part, to prohibit extortion by the threatened or promised

misuse of the public trust. The conduct alleged in the

indictment is no less extortionate merely because peti-

tioners were trading on their expected future public

trust rather than an existing public trust. Although the

“official right.” under color of which petitioners allegedly

extorted the payment of money, was contingent upon

their election, that is a difference only in degree, not

in kind. The extortion alleged in the indictment could

not have succeeded but for the expectation that peti-

tioners would be in a position to make or influence

official decisions concernizg awards of public contracts.

“So long as the motivation for the payment focuses

on the recipient’s office, the conduct falls within the

ambit of 18 U.S.C. §1951.° United States vy. Braasch,

SOS KF. 2d 139, ISI (C.A. 7), certiorari denied, 421

U.S. 910.

The court of appeals thus correctly held that “it

is no less of a crime under the Hobbs Act to sell

one’s public trust [or to conspire to do so] before,

rather than after, one is installed in public office”

(Pet. App. Al7).!

‘Neither United States v. Kenny, 462 F. 2d 1205, 1229 (C.A. 3),

certiorari denied sub nom. Kropke v. United States, 409 U.S. 914, nor

United States \. Crowley, 504 F. 2d 992, 994-995 (C.A. 7), aids peti-

tioners’ argument. Those decisions merely reject the contention that

it is Necessary to prove extortion both by fear and under color of of-

ficial right in order to establish a violation of the Hobbs Act by a

public official.

6

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

RoBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

WILLIAM C. Brown,

Attorney.

SEPTEMBER 1976.

DOJ-1976-09